Unpublished Disposition, 869 F.2d 1496 (9th Cir. 1989)

Anna M. EBNER, Plaintiff-Appellant/Cross Appellee,v.SANTA CLARITA NATIONAL BANK, Defendant-Appellee/Cross Appellant.

Nos. 88-5948, 88-6064 and 88-6165.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 1989.Decided March 1, 1989.

Before FARRIS and BEEZER, Circuit Judges, and WILLIAM W. SCHWARZER,^*  District Judge.

MEMORANDUM^** 

Anna M. Ebner appeals the district court's order granting Santa Clarita National Bank's motion for summary judgment. Ebner also appeals the district court's assessment of costs against her. The bank appeals the district court's denial of its request for attorney's fees. We reverse and remand

STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986).

I. SUMMARY JUDGMENT

Summary judgment is appropriate if the pleadings and supporting materials "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

Ebner's suit was brought under Title VII, which makes it an unlawful employment practice for an employer "to discharge any individual because of such individual's ... sex...." 42 U.S.C. § 2000e-2(a).

In order to prevail in a Title VII disparate treatment case, a plaintiff must first establish a prima facie case of discrimination. The burden of production then shifts to the defendant to articulate a legitimate nondiscriminatory reason for the adverse employment decision. If the defendant carries its burden, the plaintiff is then afforded an opportunity to demonstrate that the "assigned reason" was "a pretext or discriminatory in its application."

Diaz v. American Telephone & Telegraph, 752 F.2d 1356, 1358 (9th Cir. 1985) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973)).

The district court correctly found that Ebner established a prima facie case. She produced evidence that she was within a protected class, that she was performing her job well enough to rule out the possibility that she was fired for inadequate job performance, and that her employer sought a replacement with qualifications similar to her own, thus demonstrating a continued need for the same services and skills. See Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir. 1988). To rebut the presumption of discrimination which results from a prima facie case, a Title VII defendant is "only required to set forth a legally sufficient explanation" for its action. Lowe v. City of Monrovia, 775 F.2d 998, 1007 (9th Cir. 1985). The bank successfully rebutted Ebner's prima facie case by producing evidence that Ebner failed to work harmoniously with other employees. See Correa v. Nampa School Dist., 645 F.2d 814, 816 (9th Cir. 1981).

To avoid summary judgment, therefore, Ebner must "raise a genuine factual question as to whether the proffered reason is pretextual." Lowe, 775 F.2d at 1008 (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255-256 (1981)). Although Ebner may not ultimately prevail on her claim, her evidence, if believed, could support an inference that Ebner's discharge resulted from her supervisor's sexism and not from her negative attitude. Summary judgment was inappropriate. See Perez v. Curcio, 841 F.2d 255, 258 (9th Cir. 1988); Yartzoff v. Thomas, 809 F.2d 1371, 1377 (9th Cir. 1987).

II. COSTS

Ebner appeals the district court's assessment against her of the bank's deposition copying expenses. The district court's assessment was part of a final bill of costs in favor of the prevailing party. Because we reverse the district court's grant of summary judgment, we need not decide whether the assessment was proper. Instead, we vacate the district court's bill of costs and remand for redetermination after trial.

III. ATTORNEY'S FEES

The bank appeals the district court's denial of its request for attorney's fees. 42 U.S.C. § 2000e-5(k) provides:

In any action or proceeding under this subchapter, the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs.

Because we reverse the district court's grant of summary judgment, we do not decide whether attorney's fees are appropriate. That determination can be made by the district court following trial.

CONCLUSION

Ebner has raised a genuine factual issue as to whether the bank's proffered nondiscriminatory reason for firing Ebner is a pretext. We remand for trial on the pretext issue. We also vacate the district court's orders as to costs and attorney's feeds and remand for redetermination after trial. Each party shall bear its own costs on appeal.

REVERSED and REMANDED.