Opinion by Judge T.G. NELSON.
T.G. NELSON, Circuit Judge:
Gary and Carol Wallis appeal the district court's grant of summary judgment dismissing Wallis' claims for retaliatory discharge under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq., age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
FACTS AND PROCEDURAL HISTORY
Gary Wallis (Wallis) was hired in 1982 by J.R. Simplot Company (Simplot) as Director of Human Resources. Early in his tenure, a female employee of Simplot made a charge of sexual harassment against a vice-president of Simplot. Wallis supported her in her claim by transferring her to another division. Later, a second employee was discharged by the vice-president for his support of the woman in the harassment claim. Wallis rehired this discharged employee for his own staff and made supportive public statements on behalf of the employee. These events occurred sometime during 1983, 1984 and 1985.
In late 1989 and early 1990, Gordon Smith (Smith), president of Simplot, decided to decentralize the human resources department so that it would function at the company's division level. Smith informed Wallis of the decision in June 1990. At that time, and on occasions thereafter, Smith told Wallis that Simplot would find a "new role" for him and that he would not be "hurt by the decentralization process."
On September 12, 1990, Smith sent Wallis a letter terminating his employment. Wallis contends his termination closely followed his presentation to Smith of a copy of a speech which he intended to give at an annual meeting of Simplot's management personnel. He contends that this speech was critical of Simplot's employment practices, and that his discharge was in retaliation for this proposed speech. On the basis of these allegations, Wallis filed suit in state court alleging violations of Title VII, the ADEA, and various state law claims. Simplot removed the case to federal district court.
The district court granted summary judgment for Simplot on all claims as it saw them on February 12, 1992. Wallis moved for reconsideration of the judgment, claiming he had pleaded a claim of retaliatory discharge which had not been addressed by the district court. Although the complaint did not clearly allege this claim, the district court considered the retaliatory discharge claim, and on July 7, 1992, it entered a second summary judgment adverse to Wallis on that claim also.
On July 15, 1992, Wallis moved the district court to alter or amend the second summary judgment pursuant to Fed.R.Civ.P. 59. Then, on August 4, 1992, Wallis filed a notice of appeal, appealing both summary judgments. Finally, on January 6, 1993, the district court entered an order denying the motion to alter or amend the second summary judgment.
At the time Wallis filed his notice of appeal, Rule 4(a)(4)
The Supreme Court's order adopting the 1993 amendments to the Rules of Appellate Procedure provides:
61 U.S.L.W. 5365 (U.S. Apr. 27, 1993) (emphasis added). Wallis' appeal was pending on December 1, 1993; thus, if the application of the 1993 amendment to this case is "just and practicable," we have jurisdiction.
The parties briefed this case and were prepared to argue it as though the notice of appeal were valid. Simplot cannot claim prejudice because it did not discover the defect in the filing of the notice of appeal until this court ordered supplemental briefing on the issue of jurisdiction after the case had already been set for oral argument. To allow the parties to proceed to present the appeal they have been working on since August 1992 is just. Further, practicality is no problem. No adjustments in briefing schedules or in calendaring of oral argument were required in order to address the issues raised by the parties.
Under the circumstances of this case, we hold that it is "just and practicable" to apply the amended version of Rule 4(a)(4) to this case. Therefore, we have jurisdiction to consider the appeal.
STANDARD OF REVIEW
"We review the district court's grant of summary judgment de novo to determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1074 (9th Cir.1986). We do not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). The record below is examined to determine whether there is any basis for affirmance. Lowe v. City of Monrovia, 775 F.2d 998, 1007 (9th Cir.1985), as amended, 784 F.2d 1407 (1986). If the result reached by the district court is correct, we will affirm even if the district court relied on an erroneous ground. Id.
RETALIATORY DISCHARGE AND AGE DISCRIMINATION
We combine the Title VII and ADEA claims for analysis because the burdens of proof and persuasion are the same.
Lowe, 775 F.2d at 1005.
The requisite degree of proof necessary to establish a prima facie case for Title VII and ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence. See Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987), cert. denied, 498 U.S. 939, 111 S.Ct. 345, 112 L.Ed.2d 309 (1990). The plaintiff need only offer evidence which "gives rise to an inference of unlawful discrimination." Lowe, 775 F.2d at 1005 (quotation omitted). "The amount [of evidence] that must be produced in order to create a prima facie case is `very little.'" Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir.1991); see also, Lowe, 775 F.2d at 1009. "Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).
The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), or by more direct evidence of discriminatory intent. Lowe, 775 F.2d at 1009. In offering a prima facie case, of course, a plaintiff may present evidence going far beyond the minimum requirements.
Once a prima facie case has been made, the burden of production shifts to the defendant, who must offer evidence that the adverse action was taken for other than impermissibly discriminatory reasons. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. Once the defendant fulfills this burden of production by offering a legitimate, nondiscriminatory reason for its employment decision, the McDonnell Douglas presumption of unlawful discrimination "simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, ___ U.S. ___, ___, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993).
The question before us is whether, after these steps have been taken, a summary judgment for the defendant employer can be sustained. We are convinced that, as in any other summary judgment situation, the question can only be answered in each case by a review of the actual evidence offered by each party, to see whether a genuine issue of material fact has been presented for trial. If a rational trier of fact could, on all the evidence, find that the employer's action was taken for impermissibly discriminatory reasons, summary judgment for the defense is inappropriate. Before we analyze the record in this case, however, we deal with some of the more categorical arguments offered by the parties.
Wallis relies on our decision in Sischo-Nownejad, 934 F.2d at 1104, for the proposition that summary judgment for the employer is never appropriate after the plaintiff makes out a prima facie case. In that case, we noted:
Id. (internal citation omitted) (emphasis added). Sischo-Nownejad, thus, read as a whole, stands for the proposition that in deciding whether an issue of fact has been created about the credibility of the employer's nondiscriminatory reasons, the district court must look at the evidence supporting the prima facie case, as well as the other evidence offered by the plaintiff to rebut the employer's offered reasons. And, in those cases where the prima facie case consists of no more than the minimum necessary to create a presumption of discrimination under McDonnell Douglas, plaintiff has failed to raise a triable issue of fact.
Thus, the mere existence of a prima facie case, based on the minimum evidence necessary to raise a McDonnell Douglas presumption, does not preclude summary judgment. Indeed, in Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir.1991), we specifically held "a plaintiff cannot defeat summary judgment simply by making out a prima facie case." "[The plaintiff] must do more than establish a prima facie case and deny the credibility of the [defendant's] witnesses." Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir.1986). In response to the defendant's offer of nondiscriminatory reasons, the plaintiff must produce "specific, substantial evidence of pretext." Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983). In other words, the plaintiff "must tender a genuine issue of material fact as to pretext in order to avoid summary judgment." Id.
Wallis' assertion, that once a plaintiff makes out a prima facie case summary judgment is impermissible, is untenable. His position would require a trial in every discrimination case, even where no genuine issue of material fact exists concerning the legitimacy of the employer's nondiscriminatory reasons. Such a result is not compelled by Sischo-Nownejad and would be contrary to other cases affirming summary judgment where the plaintiff failed to produce evidence of intentional discrimination. See Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 473 n. 16 (9th Cir.1991) (distinguishing Lowe and Sischo-Nownejad); Lindahl, 930 F.2d at 1437 (requiring more than mere prima facie case); Schuler, 793 F.2d at 1011; (requiring more than prima facie case and denial of credibility of employer's witnesses); Steckl, 703 F.2d at 393 (failing to produce any facts, which if believed, would have shown pretext).
There are a number of recent cases in other circuits that have required plaintiffs to come forth with evidence sufficient to permit a rational trier of fact to find the employer's explanation to be pretextual; the mere fact that a bare prima facie case had been made out was not in itself sufficient. See Davis v. Chevron U.S.A., 14 F.3d 1082, 1087 (5th Cir. 1994) (failing to present more than mere refutation of employer's legitimate nondiscriminatory reason for not hiring); Durham v. Xerox Corp., 18 F.3d 836, 340 (10th Cir. 1994) (failing to offer sufficient evidence to support finding that reason was pretext); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir.1994) (requiring plaintiff to produce evidence from which rational fact finder could infer employer lied); Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir.1993) (requiring evidence creating factual dispute about nondiscriminatory reason); Geary v. Visitation of the Blessed Virgin Mary, 7 F.3d 324, 332 (3rd Cir.1993) (failing to offer facts showing genuine issue of fact as to reason); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 843 (1st Cir.1993) (requiring evidence sufficient for fact finder to reasonably conclude discriminatory motive), cert. denied, ___ U.S. ___, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). We hold that, when evidence to refute the defendant's legitimate explanation is totally lacking, summary judgment is appropriate even though plaintiff may have established a minimal prima facie
We now turn to the specific facts of this case to determine whether Wallis met his requisite burden to overcome summary judgment. Generally, to establish a prima facie case of an ADEA violation, the plaintiff must show he was:
Rose, 902 F.2d at 1421. Proof of the replacement element is not always required, however. Where the discharge results from a reduction in work force, the plaintiff may show "through circumstantial, statistical or direct evidence that the discharge occurred under circumstances giving rise to an inference of age discrimination." Id. Such an inference can be established by showing the employer had a "continuing need for his skills and services in that his various duties were still being performed." Id. (quoting Leichihman v. Pickwick Int'l, 814 F.2d 1263, 1270 (8th Cir.), cert. denied, 484 U.S. 855, 108 S.Ct. 161, 98 L.Ed.2d 116 (1987)); see also Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir.1993) (prima facie case established by proving others not in employee's protected class were treated more favorably).
The first three elements of the prima facie case are not contested by Simplot. Regarding the fourth element, Wallis claimed that twelve of the thirteen functions he performed were retained at the corporate level, and that all his duties were assigned to persons younger and less qualified than he. Wallis was not replaced because his position was eliminated; instead, current employees of Simplot assumed Wallis' duties. In this respect, Wallis' claim is more analogous to a reduction in force situation which does not require proof of replacement, but allows alternative proof of an inference of age discrimination. Because very little evidence is required to establish a prima facie case, we conclude he has met this burden.
We also find Wallis met his minimal burden of establishing a prima facie case for a Title VII claim. Proof of a prima facie case of retaliatory discharge requires a showing that:
Yartzoff, 809 F.2d at 1375.
Wallis contends his proposed speech, which he intended to give at an annual meeting of Simplot's management personnel and which he shared with Smith, constituted a protected activity.
The district court's view of the speech is supportable. When viewed in the context of the tour and Wallis' responsibilities, it can be fairly interpreted as not critical of Simplot, but simply descriptive of problems which employees relayed to Wallis. However, there are some isolated passages which can be read as critical of Simplot, and Smith may have possibly interpreted the speech as critical. Therefore, we disagree with the district court and hold that Wallis established a prima facie case of retaliatory discharge.
The presumptions having dropped out of the picture, we are left with the ultimate question of whether Wallis has offered evidence sufficient to permit a rational trier of fact to find that Simplot intentionally discriminated against him because of his age or retaliated against him for his proposed speech. See Hicks, ___ U.S. at ___, 113 S.Ct. at 2749. In determining whether there is a triable issue of fact, we must consider all the evidence, including that offered to establish the prima facie cases and to rebut Simplot's reason as pretextual together with any other evidence.
Wallis' response to Simplot's nondiscriminatory reason is merely that the functions he performed continue to be performed by other Simplot employees and that supervisory duties remained at the corporate level which is the same proof he offered to establish his prima facie case. Wallis offers no additional proof of age discrimination either direct, circumstantial or statistical.
Accordingly, we AFFIRM the district court's grant of summary judgment in favor of Simplot.
Fed.R.App.P. 4(a)(4) (emphasis added).