Unpublished Disposition, 937 F.2d 612 (9th Cir. 1991)

No. 90-35497.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and O'SCANNLAIN, Circuit Judges, and MACBRIDE,^**  District Judge.

MEMORANDUM^*** 

Hammrich appeals a grant of summary judgment for Potlatch on his retaliatory discharge claim. Because the district court misapplied the summary judgment standard, we reverse.

Background

Hammrich was discharged from employment with Potlatch, after 24 years with the company, on October 21, 1986 over two years after filing a workers' compensation claim. From time to time during that period, he drew benefits including medical payments and temporary total wage compensation for absences ranging from two to six weeks at a time.

Hammrich asserts that he was denied leave time which was necessary to his recovery and that, when he drew benefits over the two year period, he was reprimanded, demoted and eventually discharged from employment. He points to circumstantial evidence to show a pattern of conduct that he says makes out a valid retaliatory discharge claim.

Potlatch argues that it fired Hammrich because he worked on his farm during medical leave time, failed to get medical authorization for absences, and was absent without leave for three consecutive days. It presents an investigator's report detailing Hammrich's farm work, testimony that he was told not to perform any farm work during leave time and an arbitrator's decision finding just cause for his termination under the collective bargaining agreement.

Summary judgment was granted for Potlatch. We reverse.

ANALYSIS

Retaliatory discharge is a recognized tort in Idaho, the precise elements of which have not been defined in its courts. See Jackson v. Minidoka Irrig. Dist., 98 Idaho 330, 563 P.2d 54 (1977). Clearly Hammrich must prove that his discharge was motivated by the exercise of his rights under the workers' compensation statute. See Jackson, 563 P.2d at 57-58.

The district court determined that the two year lapse between the filing of Hammrich's workers' compensation claim and the date of his discharge made his claim for retaliatory discharge implausible. When the factual context makes a nonmoving party's claim implausible, that party must present more persuasive evidence than would ordinarily be necessary to avoid summary judgment. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied, 484 U.S. 1006 (1988) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)). Applying this higher standard, the district court found that Hammrich had not raised a genuine issue of material fact sufficient to avoid summary judgment.

Hammrich argues that the court erred in applying the implausibility standard. We agree. Before finding a claim implausible, the court must look at the factual context in which the claim arises. Matsushita, 475 U.S. at 486. By focusing exclusively on the date Hammrich filed his workers' compensation claim, the court overlooked a significant portion of the factual background for the claim. Hammrich's exercise of his statutory rights extended well beyond simply filing a claim. He alleged retaliatory conduct throughout his maintenance of that claim. The court's failure to consider the pattern of Potlatch's conduct after the filing date led it to conclude erroneously that the retaliation claim was implausible.

We consider whether summary judgment is appropriate applying the ordinary standard.¹  A nonmoving party must show that there are genuine issues of material fact in dispute in order to withstand a motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is material when it is relevant to an element of a claim or when its existence might affect the outcome. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The court's ultimate inquiry is whether the specific facts set forth by the nonmoving party, together with the undisputed background or contextual facts, could justify a jury verdict in his favor. Id. at 631.

The bulk of Hammrich's evidence is circumstantial. As the district court acknowledged, motive for retaliatory discharge is often established by such evidence. See 2A Larson, The Law of Workmen's Compensation Sec. 678.36(c) at 13-187 to 188 ("Proximity in time between the claim and the firing is a typical beginning point ... any evidence of a pattern of retaliatory conduct is, of course, very persuasive.") An employer rarely documents a retaliatory purpose for a discharge.

This court's recent opinion in Morales v. Merit Sys. Protection Bd., No. 90-15151, slip op. 5701, (9th Cir. May 6, 1991), is instructive. Morales involved a retaliatory discharge claim under Title VII which drew its primary support from plaintiff's own testimony and circumstantial evidence of retaliatory conduct by the employer. Id. at 5709. In reversing summary judgment for the employer, the court found that a jury could have believed either version. "The issue could not be resolved without a judgment of [plaintiff's] credibility." Id.

This is an analogous situation. Hammrich's own testimony, if believed, coupled with the circumstantial evidence of retaliatory conduct by Potlatch, could warrant a plaintiff's verdict.

Potlatch argues that a judge who will sit as the trier of fact may draw inferences and conclusions even where those conclusions are considered factual or mixed conclusions of law and fact. This rule is inapplicable. Where credibility is at issue, such conclusions are impermissible. See Secs. and Exchange Comm'n v. Murphy, 626 F.2d 633, 656 (9th Cir. 1980); accord, Nunez v. Superior Oil Co., 572 F.2d 1119, 1124 (5th Cir. 1978).

The district court erred in applying the implausibility standard to Potlatch's motion for summary judgment. Applying the appropriate standard, we find that Hammrich has raised a genuine issue of material fact precluding summary judgment.

REVERSED and REMANDED for trial.