No.
94-572
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
NAFISSEH HEIAT,
Plaintiff and Appellant,
v.
EASTERN MONTANA COLLEGE AND MONTANA
COMMISSIONER OF HIGHER EDUCATION,
Defendant and Respondent.
APPEAL FROM:
District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Rosemary C. Boschert; Boschert Law Firm,
Billings, Montana
For Respondent:
LeRoy H. Schramm, Montana University System
Helena, Montana
Submitted on Briefs:
November 9, 1995
Justice W. William Leaphart delivered the Opinion of the Court.
from an order of the Thirteenth
Nafisseh Heiat appeals
Yellowstone
Judicial District Court,
County,
granting
Eastern
Montana College and the Montana Commissioner of Higher Education
(EMC) summary judgment,
concluding that EMC was not liable for
We reverse.
sexual discrimination in employment.
The following issue is raised on appeal:
Did the District Court err in granting
summary judgment?
Plaintiff,
Dr.
Nafisseh Heiat Ph.D.
EMC's motion for
(Nafisseh), and her
husband Dr. Abbas Heiat Ph.D. (Abbas) are employed as associate
professors in the Department of Accounting and Information Systems
Both Nafisseh and Abbas possess Ph.D. degrees from
at EMC.
Portland
State
University.
The
District
determined
as faculty members at EMC,
work.
Abbas was hired by EMC in 1987 as an assistant professor in
had recently lost
substantially
the
that
they,
the information systems program.
perform
Court
same
At the time Abbas was hired, EMC
its only faculty member in the information
EMC advertised for the position
systems program who held a Ph.D.
listing a Ph.D. as a qualification.
EMC offered Abbas the
position.
Based on Abbas' "terminal"
doctoral degree and experience,
his starting salary under the collective bargaining agreement then
in
effect
bargaining
higher
would have been $20,491.
agreement
salaries
to
authorized
the
However,
EMC
prospective faculty
2
the
administration
members
in
collective
to
offer
extraordinary
recruitment
situations.
position for $20,491,
Ultimately,
after
Fearing that Abbas would not accept the
EMC offered him in excess of $30,000.
additional
negotiation,
Abbas
accepted
the
position at a starting salary of $40,000.
In 1988,
information
systems
equivalent
1987,
EMC advertised for another faculty opening in the
as
a
program.
The posting listed a Ph.D. or
qualification.
Nafisseh received her Ph.D. in
and applied for this position with EMC.
She was offered the
position with a staring salary of $27,190. Although she requested
an additional adjustment to the starting salary, her request was
denied and she accepted the position for the offered salary.
Both
Nafisseh and Abbas have received periodic salary increases, as
mandated
by
the
collective
bargaining
agreement
and,
during
the
1992-93 academic year, Nafisseh earned $39,049 while Abbas earned
$54,575. This disparity is due entirely to the difference in their
starting
salaries.
In April of 1991, Nafisseh filed a complaint with the Montana
Human Rights Commission alleging that she had been discriminated
against based on her sex and that she had not been given equal pay
for equal work.
The Montana Human Rights Commission issued a right
to sue letter.
In her District Court complaint, Nafisseh alleged
violations of the Montana Human Rights Act, the Government Code of
Fair
Practices,
amended,
Title VII of the Civil Rights Act of 1964, as
the Civil Rights Act of 1991, and the Equal Pay Act. On
June 24, 1994, the District Court granted EMC's motion for summary
judgment.
Nafisseh appeals from this order.
3
Our standard in reviewing a district court's grant of a motion
for summary judgment is de nova.
Minnie v. City of Roundup (1993),
257 Mont. 429, 431, 849 P.2d 212, 214. That is, we review an order
of summary judgment using the same criteria as the district court;
we are guided by Rule 56, M.R.Civ.P.
Chilberg v. Rose (Mont.
903 P.2d 1377, 1378, 52 St.Rep.
1038, 1039 (citing Minnie,
1995),
849 P.2d at 214).
we determine whether a genuine issue of
Thus,
material fact exists and whether the moving party is entitled to
judgment as a matter of law.
Minnie,
849 P.2d at 214.
Summary
judgment is an extreme remedy and should never be substituted for
a trial if a material fact controversy exists.
Furniture No. 2, Inc.
(1995),
Howard v. Conlin
272 Mont. 433, 436, 901 P.2d 116,
118-19 (citing Hagen v. Dow Chem. Co.
(1993), 261 Mont. 487, 491,
863 P.2d 413, 416).
A
party
seeking
judgment
summary
has
the
burden
of
establishing a complete absence of any genuine factual issues.
Howard,
901 P.2d at 118.
In light of the pleadings and the
evidence before the district court, there must be no material issue
of fact remaining
recover.
Howard,
its burden,
which would entitle a
901 P.Zd at 118.
non-moving party to
Once the moving party has met
the party opposing the summary judgment motion must
present material and substantial evidence, rather than conclusory
or
speculative
fact.
Howard,
statements,
to raise a genuine issue of material
901 P.2d at 119.
In addition,
all
reasonable
inferences that might be drawn from the offered evidence should be
drawn in favor of the party who opposed summary judgment.
4
Howard,
901 P.2d at 119 (citing Cereck v. Albertson's, Inc. (1981), 195
Mont. 409, 411, 637 P.2d 509, 511).
EMC contends that it was willing to pay Abbas a higher salary
than that contemplated in
the collective bargaining agreement
because EMC had a pressing need to have a faculty member with a
Ph.D. in the information systems program.
the discipline
was
'anchored'
with a
EMC asserts that "[olnce
Ph.D.
the need for a
subsequent Ph.D. was lessened and, given the tight budget the
College has labored with for several years, the College felt no
need to pay a premium for a second Ph.D. in the same discipline."
Abbas and Nafisseh assert that the rationale of "anchoring"
the department was not mentioned to either of them as a factor in
setting salaries when they applied for and accepted positions on
the faculty at EMC.
Further,
in an affidavit, Abbas stated that
even after he was hired by EMC, he was not told that he occupied an
"anchor
position"
responsibilities.
nor
was
he
assigned
extra
duties
or
Nafisseh stated that at the time she was hired
she was told that she could not be paid a high salary because of
the tight budget at EMC.
Dr. Ronald Sexton, vice-president for academic affairs at EMC,
asserted
that
the
term
"anchor
position"
was
essentially
administrative jargon and, as a result, it is quite possible that
neither Abbas nor Nafisseh had heard the term.
Further,
Sexton
contended that because EMC already had Abbas as a Ph.D. on its
information systems program faculty, EMC was not willing to pay a
premium to hire another Ph.D. and that is the reason that Nafisseh
5
was offered a lower starting salary.
According to the United States Supreme Court's burden shifting
analysis employed in discrimination cases, once the plaintiff has,
by a preponderance of the evidence, proved a prima facie case of
discrimination,
some
the burden shifts to the defendant "to articulate
legitimate,
rejection."
nondiscriminatory
reason for the employee's
Texas Dep't of Community Affairs v. Burdine (1981),
450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.Zd 207, 214-15
(citing McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802,
93 S.Ct.
burden,
1817, 36 L.Ed.2d 668).
Should the defendant carry this
"the plaintiff must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons, but were a pretext for
discrimination."
Burdine, 450 U.S. at 253.
Recently, the Supreme
Court refined this stage, stating that "a reason cannot be proved
to be a 'pretext
for
discrimination' unless
it is shown both that
the reason was false, and that discrimination was the real reason."
St. Mary's Honor Ctr. v. Hicks (1993), _ U.S. -,
2742,
2752,
113
s.ct.
125 L.Ed.2d 407, 422.
At all times, the plaintiff retains the burden of persuasion
and,
after
the
nondiscriminatory
defendant
has
articulated
a
legitimate,
reason, the plaintiff must have the opportunity
to demonstrate that the proffered reason was not the true reason
for the employment decision.
Burdine,
450 U.S. at 256.
At this
point, the burden merges with the ultimate burden of persuading the
court
that
the
plaintiff
has
been
6
a
victim
of
intentional
discrimination. St. Marv's Honor Ctr., 113 S.Ct. at 2752; Burdine,
450 U.S. at 256.
persuading
the
The plaintiff succeeds either directly by
court that a discriminatory reason more
likely
motivated the employer or indirectly by showing that the employer's
proffered explanation is unworthy of credence.
Burdine, 450 U.S.
at 256.
On a motion for summary judgment in discrimination cases, the
McDonnell Douglas order of proof and shifting of burdens at trial
must be viewed in light of the traditional test for granting a
motion for summary judgment.
Cir. 1984),
Brown v. Parker-Hannifin Corp. (10th
746 F.2d 1407, 1411.
That test is whether the moving
party has demonstrated that there are no genuine issues of material
fact and that the moving party is entitled to judgment as a matter
of law.
the
Rule 56(c),
Seventh
Circuit
M.R.Civ.P.; Howard,
stated,
901 P.2d at 118-19.
As
"[aIs a general rule, questions of
motive and intent are inappropriate for summary judgment."
Box v.
A & P Tea Co. (7th Cir. 1985), 772 F.2d 1372, 1378, cert. denied,
478 U.S. 1010 (1986) (citing Cedilla v. International Ass'n of
Bridge & Structural Iron Workers (7th Cir. 1979), 603 F.2d 7, 11).
The Box court stated:
Consequently, a defendant in a discrimination case is not
entitled to summary judgment if the plaintiff submits
evidence from which a court can reasonably infer that the
articulated legitimate reason is, in fact, a pretext for
discrimination.
m, 772 F.2d at 1378 (citing Gifford v. Atchison, Topeka and Santa
Fe Ry. (9th Cir. 1982), 685 F.2d 1149, 1156).
The District Court determined that although Nafisseh had
established a prima facie case of sex discrimination, EMC had
established
a
legitimate
nondiscriminatory
reason
disparity between Abbas and Nafisseh.
the
salary
District
The
for
court
determined that the differences in the salaries were based on
factors other than sex.
(1981),
See County of Washington v. Gunther
452 U.S. 161, 170-71, 101 S.Ct. 2242, 2248-49, 68 L.Ed.2d
751, 760-61.
However, in making this determination, the District
Court adjudicated the disputed issue of material fact as to the
reason for the differences in the salaries.
As the Seventh Circuit
found in Box, this factual determination of motive or intent is
the
precisely
inappropriate
also
in
reason
that
summary
discrimination
is
generally
cases. _, 772 F.2d at 1378; see
Box
Sorba v. Pennsylvania Drilling Co.
200, 205,
judgment
cert. denied, 484 U.S. 1019.
(3d Cir. 1987), 821 F.2d
Where
different
ultimate
inferences may be drawn from the evidence presented by the parties,
the case is not one for summary judgment.
Brown
,
746 F.2d at 1411.
We note that Nafisseh's burden to overcome a motion for
summary judgment is different than her burden at trial.
In Kenyon
v. Stillwater County (1992), 254 Mont. 142, 148, 835 P.2d 742, 74546, we
stated that,
judgment,
which,
was
in order to survive a motion for summary
the plaintiff has the initial burden to "adduce facts
if believed, support a reasonable inference that he or she
denied
an
employment
opportunity
.'I
We went on to hold that:
If that burden is met, the employer must rebut the
inference of discrimination with evidence of legitimate
nondiscriminatory reasons the plaintiff was not hired or
was terminated; upon such a showing, the burden shifts
8
back to the employee to demonstrate with specific facts
that the employer's explanation is a pretext.
Kenvon,
835 P.2.d at 746 (citing Foster v. Arcata Associates, Inc.
(9th Cir. 1985), 772 F.2d 1453, 1459, cert. denied, 475 U.S. 1048
(19861,
overruled on other grounds by, Kennedy v. Allied Mut. Ins.
Co. (9th Cir. 19911, 952 F.2d 262).
process places a plaintiff,
We now determine that this
the nonmoving party in this summary
judgment context, in the peculiar position of having to prove her
case to survive the defendant's motion.
The order of proof and
shifting of burdens at trial must be viewed in light of the
traditional test for granting a motion for summary judgment.
Thus,
to survive a motion for summary judgment, a plaintiff must only
produce evidence sufficient to support a reasonable inference of
the existence of the fact at issue.
Under the Kenvon test, the
non-moving party is saddled with two burdens,
which, if believed, support a reasonable inference that he or
facts
she
first, to "adduce
was
denied
an
employment
opportunity"
and,
if the employer
rebuts the inference of discrimination with evidence of legitimate
nondiscriminatory
reasons, to "demonstrate with specific facts that
the employer's explanation is a pretext."
Kenvon, 835 P.2d at 746.
The three-step McDonnell Douqlas analysis, as adopted in the
summary judgment context by this Court in Kenvon, conflicts with
the
two-step
analysis
for
summary
judgment.
traditionally
employed
in
deciding
motions
Under the traditional summary judgment
analysis the party opposing summary judgment has only one burden,
namely,
to demonstrate that genuine issues of material fact exist.
To do so, the party opposing summary judgment must present material
9
and
substantial
speculative
Howard,
evidence,
rather
than
mere
conclusory
and
statements, to raise a genuine issue of material fact.
901 P.2d at
119.
In Kenvon,
we made the mistake of
following the lead of many state and federal courts throughout the
country and superimposed the three-step McDonnell
analysis
into
the
summary
judgment
context
without
Douqlas
trial
specifically
noting that the plaintiff's burden in defending against a motion
for summary judgment differs from the plaintiff's burden at trial.
At trial, the plaintiff has the burden of proof so the McDonnell
Doucrlas construct of placing the initial burden on the plaintiff is
logical.
summary
judgment,
However, when, as here, the defendant makes a motion for
judgment,
that construct does not work.
In summary
the moving party has the initial burden of establishing
that there are no genuine issues of material fact and that it is
entitled to judgment as a matter of law.
Rule 56(c), M.R.Civ.P.
We now determine that it is error to require a plaintiff in a
discrimination case to satisfy the burdens set forth in Kenvon to
survive a motion for summary judgment.
that portion
of Kenvon v.
Accordingly,
we
overrule
Stillwater Countv which requires a
plaintiff to initially "adduce facts which, if believed, support a
reasonable inference that he or she was
denied an employment
opportunity" and, in rebuttal, to "demonstrate with specific facts
that the employer's explanation is a pretext."
Kenvon, 835 P.2d at
746.
Instead, we now adopt an analysis consistent with the Burdine
test, yet more compatible with the traditional analysis used in the
10
summary judgment context.
case
of
discrimination
in
The plaintiff must allege a prima facie
her
complaint.
In this context, the
plaintiff alleges a prima facie case by asserting that plaintiff is
a member of a protected class, and that a male colleague with the
same
credentials,
who performs
receives a higher salary.
must
then
come
substantially
the
same
work,
The employer seeking summary judgment
forward with a legitimate nondiscriminatory reason
for the disparity.
nondiscriminatory
If the employer comes forward with a legitimate
reason, the plaintiff must then, in addition to
having alleged a prima facie case in the complaint,
produce
evidence that establishes her prima facie case as well as evidence
which raises an inference that the employer's proffered reason is
pretextual.
Of course,
discrimination
this
action
does
not
mean
that
a
plaintiff
in
a
always survives summary judgment when the
plaintiff calls the employer's proffered explanation into question.
Rather than having to demonstrate with specific facts that the
employer's
explanation
"is a pretext,"
she need only introduce
evidence which raises an inference that the employer's proffered
reason is pretextual.
To create a genuine issue of material fact
as to pretext, the plaintiff must not only introduce evidence from
which a reasonable person could infer that she is qualified, she
must
also introduce evidence that casts doubt on the defendant's
contention that there was a legitimate business justification for
defendant's
F.Zd 123,
action.
Chauhan v. M. Alfieri Co. (3d Cir. 19901, 897
127 (citing Healey v. New York Life Ins. Co.
11
(3d Cir.
1988),
860 F.2d 1209, 1220, cert. denied, 490 U.S. 1098 (1989)).
The Chauhan court determined that the plaintiff had pointed to
evidence
necessary
inconsistencies
to
pass
this
[defendant's]
present
[plaintiff],
in
precisely
implausibilities
in
test,
stating
explanation,
the
[defendant's]
kind
of
proffered
support an inference of discrimination."
as
that
pointed
"the
out
by
'inconsistencies
reasons'
that
and
could
Chauhan, 897 F.2d at 128
(citations omitted).
Justice
Nelson's
specially
concurring
opinion
contends
that
the Kenyon test requires that a plaintiff opposing summary judgment
do nothing more than establish a genuine issue of material fact.
However,
as this case exemplifies,
in
discrimination
cases,
the
district courts are requiring that a plaintiff do more than merely
raise an issue of material fact.
In the present case, the District
Court held that EMC established a legitimate nondiscriminatory
reason for the salary disparity and that:
Dr. Nafisseh Heiat failed to establish the legitimate,
nondiscriminatory reason offered by EMC for her salary is
pretextual. A reasonable jury could not return a verdict
in favor of Dr. Nafisseh Heiat in light of the evidence
presented to the court during the summary judgment
proceedings.
[Emphasis added. 1
Notably,
the
court granted summary judgment
not because of
Nafisseh's inability to establish a genuine issue of material fact
or to raise an inference of pretext.
Rather, the court, citing the
McDonnell Douqlas trial burden, faulted Nafisseh for her failure to
"establish" that EMC's proffered reason "is a pretext."
The
test
discrimination
that we
case
now
establish
for
a
plaintiff
in
a
to survive a motion for summary judgment
12
comports with Rule 56, M.R.Civ.P., in that a plaintiff is required
to raise an inference of pretext, as opposed to proving pretext.
This burden is more aligned with the general requirement of raising
a genuine issue of material fact to survive the motion for summary
judgment.
In the instant case, Nafisseh has pointed to inconsistencies
in
EMC' s
explanation
discrimination.
that
could
support
an
inference of
The District Court found that Nafisseh had
established a prima facie case because she had "proved that she is
a woman and her male colleague with the same credentials, who
performs substantially the same work, receives a higher salary than
her."
See St. Mary's Honor Ctr., I13 S.Ct. at 2747 (discussing the
elements of
a prima facie case in
context); Sorba,
the racial discrimination
821 F.2d at 203 (discussing the elements of a
prima facie case in the ADEA context).
Additionally,
Nafisseh
submitted affidavits which, in addition to the facts making up the
prima facie case, raise an inference that the defendant's proffered
reason is
pretextual.
Chauhan,
897 F.2d at 128.
Under the
standard we now announce, Nafisseh would not be required to produce
affidavits establishing her prima facie case until the defendant
moves
for
summary
judgment
and
proffers
a
legitimate
nondiscriminatory reason for the salary disparity.
In her affidavit, Nafisseh stated that she "was not advised
that the reason Dr. Abbas Heiat was receiving a higher salary than
mine was because he occupied an 'anchor position' in the department
and that it was the practice of the college to pay a premium salary
13
to fill such 'anchor
positions.'"
Further,
Nafisseh stated that
she was told that she was receiving a lower salary because of
"budgetary
problems."
In his affidavit, Abbas stated that when he
was hired he was not advised that one of the reasons he was offered
a
salary of $40,000 was because he was occupying an "anchor
position."
In addition, he stated that he has not "been assigned
any extra duties, chores, assignments, or responsibilities relative
to said 'anchor position.'"
Contrary to the dissent's suggestion that the Heiats have done
nothing more than establish an "understandable lack of knowledge as
to the basis for administrative decisions made by EMC," these
affidavits raise genuine issues as to material facts in at least
three particulars: (1) neither Nafisseh nor Abbas were advised of
the
"anchor
their
position"
tenure
of
rationale when they were hired or during
teaching;
(2) EMC has propounded two differing
reasons for Nafisseh's lesser pay; budgetary concerns on the one
hand,
and the
"anchor
position" rationale on the other; and (3)
contrary to what one would expect
"anchor"--he
was
never
assigned
if Abbas were in
any
additional
fact an
duties
or
responsibilities commensurate with such a position on the faculty.
These are not mere conclusions but, rather, material facts which
give rise to genuine issues, not the least of which is the question
of whether the "anchor position" rationale was, as Nafisseh claims,
merely an
afterthought
or
pretext.
These material facts are
sufficient to overcome the motion for summary judgment.
P.2d at 416 (citing D'Agostino
Haqen,
863
v. Swanson (1990), 240 Mont. 435,
14
442,
784
P.2d 919, 924).
Nafisseh argues, and we agree, that, at best, there is a
disputed issue of material fact as to whether Abbas was hired to
fill a so-called "anchor position" and, at worst, an issue of
whether the whole concept of an "anchor position" was merely a
pretext
developed
after
the
fact to escape the consequences of
EMC's actions which led to this suit.
Nafisseh testified that she
was told that budgetary problems were the reason she was offered a
lower salary.
material
Resolution of this discrepancy was a question of
fact.
A jury should have the opportunity to weigh the
credibility of the witnesses and the testimony to determine whether
Nafisseh has indeed been discriminated against because of her sex.
This
question
nondiscriminatory
of
fact,
material
reason
for
the
whether
difference
in
there
was
salaries,
a
should
have precluded the District Court from granting EMC's motion for
summary judgment.
Reversed
and
remanded
for
proceedings
opinion.
We concur.
J stices
15
consistent
with
this
James C. Nelson, specially
concurring.
I concur with the result of our opinion.
I also concur in the
approach we have taken, and I believe our decision will clarify the
burdens of the respective parties in summary judgment proceedings
in discrimination cases.
same result using the
Nevertheless,
I would have reached the
McDonnell-Douslas
analysis which we adopted
in Kenyon v. Stillwater County (1992), 254 Mont. 142, 835 P.Zd 742.
I write separately only because I do not agree in all respects
with the way that we have interpreted Kenvon or that our decision
in that case should be overruled.
Rather,
I believe that our
decision here simply clarifies Kenvon.
In Kenyon we relied on and followed Foster v. Arcata Assoc.,
Inc.
(9th
Cir.
1985),
772
F.2d
1453,
a
summary
judgment-
discrimination case, which, like cases in many other jurisdictions,
followed the analysis in McDonnell-Douqlas.
I believe that the
first step in that analysis and in our approach here is really the
same--i.e. the plaintiff must initially make out a prima facie case
of discrimination at the pleading stage.
While that may appear to
be a first burden for the plaintiff under McDonnell-Douslas, that
same hurdle exists for the plaintiff in any case.
I do not believe
that the language used in Kenvon that the plaintiff need
"adduce
facts which, if believed, support a reasonable inference that he or
she was denied an employment opportunity," sets any different or
higher standard for the initial pleading in discrimination cases
than
we
have
discrimination
traditionally
cases.
Kenvon,
required
for
835 P.2d at 745.
16
pleading
in
non-
In Treutel v. Jacobs (1989), 240 Mont. 405, 784 P.2d 915, a
personal injury case decided on summary judgment, citing Rule 8(a),
M.R.Civ.P., we stated:
While this Court has long recognized that a complaint is
to be construed in the light most favorable to the
plaintiff, Fraunhofer v. Price (1979), 182 Mont. 7, 594
P.2d 324, we cannot say that Linda's complaint, even when
viewed favorably to her position, set forth a claim upon
which relief can be granted. As we stated in Rambur v.
Diehl Lumber Co. (1963), 142 Mont. 175, 179, 382 P.2d
552,
17 . .
554 :
. a
complaint must state something more than facts
which, at m o s t , would breed only a suspicion that
plaintiffs have a right to relief. Liberality does not
go so far as to excuse omission of that which is material
and necessary in order to entitle relief."
Treutel, 784 P.2d at 916. Accordingly, the first element of Kenvon
is in line with existing law. If plaintiff does not set out a prima
facie case in the complaint, her
12(b) (6) motion to dismiss,
claim will
much
less
never survive a Rule
a
motion
for
summary
judgment.
The burden then shifts to the movant for summary judgment, the
employer. Under our decision here, under McDonnell-Douslas,
under Kenvon, the test is the
with a
legitimate
discriminatory
same;
and
the employer must come forward
nondiscriminatory
reason for the alleged
treatment.
Assuming the employer meets that burden, it is then incumbent
on the plaintiff to
come
forward with sufficient facts to raise an
inference that the employer's reason is actually a pretext.
the
majority
While
reads the language used in Kenvon as imposing a trial
burden of proof on the plaintiff, I do not.
in either Kenvon or in Foster that leads
17
I do not find anything
me to
believe that our
statement that the employee must "demonstrate with specific facts
that the
employer's
explanation is a pretext,"
imposes
any
different or higher burden of proof on the plaintiff in a summary
judgment-discrimination case than in any other case.
Again,
recently
in the context of a non-discrimination case, we
reiterated
the
well-established
rule
as
to
plaintiff's
burden in opposing a motion for summary judgment:
Once the movant has presented evidence to support his or
her motion, the party opposing summary judgment must
present material and substantial evidence, rather than
mere conclusory or speculative statements, to raise a
genuine issue of material fact.
Howard v. Conlin Furniture No. 2, Inc. (Mont. 1995), 901 P.2d 116,
119,
case.
52 St.Rep. 814, 815,
a
wrongful
discharge-summary
judgment
See also Thornton v. Songstad (1994), 263 Mont. 390, 868
P.2d 633,
a contract case involving the sale of real property,
wherein we
stated that the non-moving party's proof must be
substantial and consist of specific facts and that reliance on
speculative,
Thornton,
fanciful
or
868 P.2d at 638.
conclusory
statements
is
insufficient.
In my view, Kenvon's third step does
not require of plaintiff any more than that she present material
and substantial factual evidence of pretext, nor does that step
allow her to prevail merely on conclusion and speculation. I do not
believe that, under Kenvon, the plaintiff is subjected to a trial
burden of proof
in opposing summary judgment;
she
is simply
required to raise a factually based inference of pretext, but
nothing more.
Again, I believe our opinion and our approach here is correct.
18
It should now be crystal clear who bears which burden and what is
the
correct
cases.
standard
Nevertheless,
of
proof
in
summary
judgment-discrimination
for the very reasons that we set out in our
opinion, I would have also concluded under Kenvon that Nafisseh had
met her burden to raise a factually based inference that EMC's
explanation was pretextual.
Accordi .wJlY
I
1
specially
19
Justice Karla M. Gray specially concurring.
I concur in the result we reach in this case, but disagree
strenuously with portions
of the analysis
reached.
I join in the analysis contained in
In this regard,
under which it is
Justice Nelson's special concurrence.
I write separately to state my dismay over the unnecessary and
unwise step of "overruling" Kenvon which is taken here by the three
Justices who have signed the plurality opinion.
First,
Kenyon can
and should be clarified, but not overruled, for the reasons stated
by Justice Nelson.
Indeed,
no party to this case suggested
overruling Kenvon, a unanimous--and recent--opinion by this Court.
Moreover,
the statement in the plurality opinion that "the
district courts" are requiring plaintiffs in discrimination cases
to do more
than merely raise an
issue of
material fact is
questionably sweeping, at best, given that this is the first such
case we have seen.
In addition, the fact that the District Court
in this case applied the McDonnell-Douolas
trial burden, rather
than the summary judgment burden established by this Court in
Kenyon,
is hardly a reason to overrule Kenvon.
Indeed,
had the
District Court applied Kenvon, but done so erroneously, the proper
course for this Court would be to correct the District Court, not
to overrule Kenvon.
To suggest that a district court's error in
either missing a case altogether or applying it erroneously is a
proper basis for overruling that case is certainly a new approach
to stare decisis.
20
My major concern with the plurality opinion, however, is just
that: it is merely a plurality opinion with regard to overruling
Kenyon .
A majority of this Court is opposed to overruling Kenvon,
yet apparently this Court is being forced down an entirely new path
by virtue of three of its members stating that they can overrule a
case with less than a majority vote.
I
recognize
that,
as
a
practical
matter,
difference in this case whether Kenvon is
it makes little
merely
clarified or
overruled since either would produce the same result.
however,
Here,
it is the plurality's attitude toward precedent and stare
decisis--and where that attitude will lead us in the future--which
is important.
Can three votes really overrule a case?
In a four
to three decision, will the dissenters "overrule" cases relied on
by
the
majority?
Are such approaches sufficiently cognizant of
the importance of stability, continuity and clarity in the law?
Applying Kenvon, I would conclude that Nafisseh met her burden
in this case.
Accordingly,
I would reverse the District Court.
21
Justice W. William Leaphart specially concurring.
In pointing out that there are only three votes to reverse
Kenvon,
Justice Gray's
special
concurrence
present decision as a "plurality" decision.
characterizes
the
That is not an
accurate characterization of our holding in this case.
Including
the special concurrences of Justice Nelson and Justice Gray,l
there
are five votes for the new test adopted in the present case.
Thus,
as to the adoption of that test,
there is clearly a majority.
Those same five Justices, however, disagree as to what effect the
new test has on the test previously enunciated in Kenvon.
No more
than three Justices were able to agree on any one characterization.
That
is, has Kenvon been overruled, clarified or modified?
apparent from the opinion,
since
the
Court
had
As is
three of the Justices did agree that,
Kenvon
changed
both
substantively, Kenvon was, in effect, overruled.
procedurally
The
and
disagreement
as to how the result in this opinion affects Kenvon, does not alter
the fact that, in the final analysis, a majority of the Court has
adopted a new test which replaces the Kenvon test.
II have resisted the temptation to count my own special
concurrence as yet another vote for the opinion.
22
Justice Charles E. Erdmann dissenting.
I
respectfully
dissent.
I am not convinced that the new
standard adopted by the majority for
summary
judgment motions in
discrimination cases is necessary, nor do I believe it is necessary
to overrule our recent decision in Kenyon v. Stillwater County
(1992),
254 Mont. 142, 835 P.2d 742.
I would continue to utilize
the standard established in McDonnell Douglas v. Green (1973), 411
U.S. 792,
summary
93 S. Ct. 1817,
judgment
(9th Cir. 1985),
Kenvon.
36 L. Ed. 2d 668,
context in Foster v.
Arcata
as applied in the
Associates,
Inc.
772 F.2d 1453, which was adopted by this Court in
Under either the traditional standard or the new standard
adopted by the majority,
however,
I would affirm the District
Court.
As recognized by the majority, this Court has adopted the test
articulated in McDonnell Doualas and further developed in Texas
Department of Community Affairs v. Burdine (1981),
101 S. Ct. 1089, 67 L. Ed. 2d 207,
cases.
for
analyzing
450 U.S. 248,
discrimination
See Kenyon, 835 P.2d 742; Taliaferro v. State (1988), 235
Mont. 23, 766 P.2d 860; European Health Spa v. Human Rights Comm'n
(1984),
212 Mont. 319, 687 P.2d 1029; Martinez v. Yellowstone
County Welfare Dept. (1981), 192 Mont. 42, 626 P.2d 242.
In McDonnell Douslas,
the U.S. Supreme Court set forth the
shifting burdens and order of proof in discrimination cases.
The
plaintiff must first establish a prima facie case of discrimination.
This is generally established with reference to the prima
23
facie case model for disparate treatment cases adopted in McDonnell
Douslas.
Upon proof of a prima facie case,
a presumption arises
that the employer unlawfully discriminated against the employee.
If a prima facie case is established,
the employer must produce
evidence that its action was based on a legitimate, nondiscriminatory reason, or, under the Equal Pay Act, based on "factors other
than
sex. I'
If
nondiscriminatory
the
employer
CXl
articulate a
legitimate,
reason, the presumption of discrimination drops
out of the case and the burden shifts back to the plaintiff who
must then establish that the reason is pretextual.
Kenyon,
835
P.2d at 745-46; Taliaferro, 764 P.2d at 863; European Health Soa,
687 P.2d at 1031; Martinez, 626 P.2d at 246; Burdine, 450 U.S. at
252-53.
The District Court found that Nafisseh established a prima
facie case of discrimination by showing that she was a woman and a
male colleague (Abbas) with the same credentials, who performed
substantially the same work,
District
Court went on to
legitimate,
nondiscriminatory
received a higher
salary.
The
find that EMC had established a
reason
for
the
salary
differential
between Nafisseh and Abbas. Finally, the District Court found that
Nafisseh failed to establish that the legitimate, nondiscriminatory
reason offered by EMC was pretextual.
Since Nafisseh could not
produce evidence to establish that EMC's reasons were pretextual,
there was no genuine issue of material fact.
24
The District Court
concluded that a reasonable jury could not return a verdict in
favor of Nafisseh.
As
noted,
the majority has determined that the McDonnell
Douslas test is not appropriate for analyzing discrimination cases
in the summary judgment context and developed a new standard.
The
majority abandons the first element of the McDonnell Douslas test
which required the plaintiff to establish a prima facie case,
which,
once established, created a presumption of discrimination.
The majority states that for summary judgment purposes, the court
will assume that the plaintiff has alleged a prima facie case of
discrimination.
The majority retains the second element of the
McDonnell Doucrlas test by then requiring the employer to come
forward with a legitimate, nondiscriminatory reason for the action.
If the employer comes forward with a legitimate, nondiscriminatory
reason,
only then does the plaintiff need to establish a prima
facie case of discrimination.
If the plaintiff produces evidence
which raises an inference that the employer's proffered reason is
pretextual,
the plaintiff's burden is met and summary judgment must
be denied.
This new standard requires employers to rebut discrimination
allegations not yet proven,
proverbial
horse.
which places the cart before the
The Ninth Circuit has discussed and applied the
McDonnell Douqlas standard in the summary judgment context in
Foster.
On a motion for summary judgment in discrimination cases,
the McDonnell Douqlas order of proof and shifting of
25
burdens must be viewed in light of the traditional test
for granting summary judgment. See Steckl, 703 F.2d at
393.
That test is whether the moving party has
demonstrated that there is no genuine issue of material
fact and that it is entitled to judgment as a matter of
law.
Alaska v. United States, 754 F.2d 851, 853
(9th Cir. 1985). Although courts are generally cautious
about granting summary judgment when motivation and
intent are at issue, as in Title VII and ADEA cases, such
relief may nonetheless be appropriate. Steckl, 703 F.2d
at 393.
One purpose of the allocation of burdens in
Title VII and ADEA actions is to enable the district
courts to identify meritless suits and dispense with them
short of trial. Id., at 393-94; Anderson, 656 F.2d at
535.
Summary judgment, judiciously applied, is an
appropriate vehicle for accomplishing this objective.
Foster, 772 F.2d at 1459.
While the majority's new standard appears to simplify the
summary judgment procedure in discrimination cases by eliminating
the initial McDonnell Douglas element, it necessarily abandons the
precedence
established
by
this Court as well as numerous other
state and federal courts in this area.
The
traditional
standard
has worked well in Montana and other jurisdictions and this Court
should be reluctant to abandon the process.
The adoption of the new standard, while simplifying the steps
to be followed by the parties, leaves unchanged the analysis of the
final McDonnell Douslas element--whether the plaintiff can produce
evidence to raise an inference that the employer's proffered
reasons are pretextual. Here I differ with the majority as to what
suffices as evidence to establish the inference in this case.
The majority finds three geniune issues of material fact:
(1) Nafisseh and Abbas were not advised by EMC that it considered
Abbas'
position an "anchor position"; (2) EMC has given two reasons
26
for Nafisseh's
position"
lower pay--budgetary concerns and the "anchor
rationale;
and
(3)
Abbas
was
never
assigned
additional duties one would expect of an "anchor position."
any
These
three assertions are merely speculative or conclusory and are
insufficient to raise a genuine issue of material fact.
& Farm
Credit Bank of Spokane v. Hill (1993), 266 Mont. 258, 265, 879 P.2d
1158,
1162.
In this case,
EMC established that when tibas was hired in
1987 the school had just lost the only faculty member in the
information
systems
discipline who possessed a
Ph.D.
The
administration felt it was important to the credibility and
reputation of the discipline to immediately find another Ph.D. to
"anchor"
the
discipline.
The term
referred to the need for a Ph.D.
evidence in the record that the
duties
or
responsibilities.
"anchor
position"
merely
and there was absolutely no
term
envisioned any additional
EMC was willing to pay a premium to
recruit a high quality applicant with a Ph.D. and did so when they
hired Abbas.
In 1988,
professor
however,
when EMC advertised for an assistant
in the information systems discipline,
a Ph.D. was
already on staff so there was no reason to pay a premium.
The job
advertisement did not require that applicants have a Ph.D.
Nafisseh,
who had a Ph.D.,
applied for and was hired for the
position at a salary level higher than the salary schedule the
union agreement called for, but lower than the salary paid to Abbas
27
the year before.
EMC's
articulated
reason for the salary
differential was that there was no need to pay a premium for a
second Ph.D. in the same discipline, a reason the District Court
found to be legitimate and nondiscriminatory.
In the affidavits filed in opposition to EMC's motion for
summary
judgment,
the Heiats stated that they were not aware of
EMC's proffered reasons for the salary differential when they were
hired.
Nafisseh stated in her deposition that she was told when
she was hired that the college was experiencing "budget problems,"
but that statement does not conflict with EMC's position that they
were not willing to pay a premium for a second Ph.D.
information
systems
discipline.
The Heists'
in the
affidavits do not
create any genuine issues of material fact, but merely reflect the
Heists'
understandable lack of knowledge as
to the basis for
administrative decisions made by EMC.
In her deposition,
Nafisseh
confirmed
that
she had no
knowledge that would create a genuine issue of material fact:
So you don't think -- you don't know then that the
Q:
basis for offering you $20,000 was the fact that you were
a woman rather than the fact that you were the second
Ph.D. hired?
HEIAT:
I know that I was offered a lower salary, and I
knew that I was a female rather than a male compared to
another colleague who was paid a higher salary.
So my
conclusion was that probably it was based on my sex.
.
.
Q: Well, you said that you can't say that the school was
not basing their salary decisions on the fact that you
were the second Ph.D.? They might very well have been
basing them on that?
28
HEIAT:
I said I don't know.
aware of it. Nobody told me.
If they were,
I
wasn't
Nafisseh's subjective belief of discrimination does not create
a genuine issue of material fact.
College (U.S.D.C. N.D. 111. 1989),
Bendix
(1988),
Corp.
See Tozzi v.
Joliet Junior
57 FEP 269, 272 (citing Andre v.
(7th Cir. 1988), 841 F.2d 172, 176, cert. denied
488 U.S. 855, 109 S. Ct. 144, 102 L. Ed. 2d 116).
Her
statements are conclusory and are not supported by any specific
evidence and are insufficient to create a genuine issue of material
fact.
See Grimwood v. Univ. of Puget Sound (Wash. 1988), 753 P.2d
517, 519-20.
The majority cites Box v. A & P Tea Co. (7th Cir. 19851, 772
F.2d 1372, and Brown v. Parker-Hannifin Corp. (10th Cir. 19841, 746
F.2d 1407, and yet both these cases support the traditional summary
judgment standard.
It is true that once a properly supported motion for
summary judgment is made, the opposing party may not
merely rest on the allegations in the complaint and must
respond with some factual showing of the existence of a
genuine issue of material fact.
Brown,
746 F.Zd at 1412
As the district court correctly noted, ' [cl onjecture,
matters
outside
the
speculation,
references to
[affiant'sl personal knowledge, conclusory statements and
bare assertions of the general truth of a particular
matter will not suffice to withstand a properly supported
motion for summary judgment.'
Box,
772 F.Zd at 1378.
1n this case,
Nafisseh has certainly not presented any
evidence that EMC's proffered reasons are pretextual nor has she
29
presented evidence that would raise an inference that the reasons
are pretextual.
She instead argues that she and her husband were
not informed of EMC's reason for the pay differential when they
were hired and,
since her husband is being paid more,
she
"concluded" that she had been discriminated against based upon her
gender.
Under the McDonnell Douqlas/Foster
seeking to establish a pretext must,
evidence
that
raises
an
reasons are pretextual.
inference
analysis, a plaintiff
at a minimum,
that
the
employer's
introduce
proffered
Nafisseh has simply failed to do so.
This Court has held that the primary policy and general
purpose underlying Rule 56, M.R.Civ.P., is "to promptly dispose of
actions in
which there is
eliminating
unnecessary
no genuine issue of fact,
trial,
delay
and
expense."
thereby
Silloway
v.
Jorgenson (1965), 146 Mont. 307, 310, 406 P.2d 167, 169. "[Tlhe
purpose of summary judgment is to encourage judicial economy by
eliminating unnecessary trials . . .'I
(1989),
Cole v.
Flathead
County
236 Mont. 412, 416, 771 P.Zd 97, 99-100.
[T]he salutary purposes of summary judgment--avoiding
a n d less
protracted, e x p e n s i v e
to discrimination cases than to commercial or other areas
of litigation. . . To allow a party to defeat a motion
for summary judgment by offering purely conclusory
absent any concrete
allegations of discrimination,
particulars, would necessitate a trial in all Title VII
cases.
Ritzie V. City Univ. of New York (S.D.N.Y. 19891, 703 F. Supp. 271,
281.
Virtually all of the cases in this area, including those cited
by the majority,
require more than speculation and conclusory
30
statements.
Here EMC's proffered reason was that Abbas had been
hired at the higher salary for an "anchor position" because of the
need for a Ph.D. in the discipline.
No evidence contradicted this.
When Nafisseh was hired there was no need to expend additional
dollars to recruit a Ph.D. since the discipline already had one.
NO
evidence
contradicted
this.
Nafisseh
and
the
majority
speculated that the "anchor position" might require additional
duties.
No
evidence
supports
this
speculation.
Nafisseh
has
simply failed to establish evidence which would support an
inference that EMC's reasons were pretextual.
The
proper
standard
was
set forth by the Ninth Circuit in
Foster and was properly articulated and applied by this Court in
Kenvon.
I would continue to rely on the McDonnell Douslas/Burdine
standard as defined in the summary judgment context by Foster and
adopted by this Court in Kenvon.
However,
under
either
standard
Nafisseh has failed to establish that EMC's proffered reasons are
pretextual.
I would affirm the District Court.
Justice
Chief Justice J. A.
opinion.
Turnage joins
in the
foregoing
dissenting
