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.

Nafisseh Heiat appeals from an order of the Thirteenth

Judicial District Court, Yellowstone County, granting Eastern

Montana College and the Montana Commissioner of Higher Education

(EMC) summary judgment, concluding that EMC was not liable for

sexual discrimination in employment. We reverse.

The following issue is raised on appeal:

Did the District Court err in granting EMC's motion for

summary judgment?

Plaintiff, Dr. Nafisseh Heiat Ph.D. (Nafisseh), and her

husband Dr. Abbas Heiat Ph.D. (Abbas) are employed as associate

professors in the Department of Accounting and Information Systems

at EMC. Both Nafisseh and Abbas possess Ph.D. degrees from

Portland State University. The District Court determined that

they, as faculty members at EMC, perform substantially the same

work. Abbas was hired by EMC in 1987 as an assistant professor in

the information systems program. At the time Abbas was hired, EMC

had recently lost its only faculty member in the information

systems program who held a Ph.D. EMC advertised for the position

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 would have been $20,491. However, the collective

bargaining agreement authorized the EMC administration to offer

higher salaries to prospective faculty members in extraordinary

2
recruitment situations. Fearing that Abbas would not accept the

position for $20,491, EMC offered him in excess of $30,000.

Ultimately, after additional negotiation, Abbas accepted the

position at a starting salary of $40,000.

In 1988, EMC advertised for another faculty opening in the

information systems program. The posting listed a Ph.D. or

equivalent as a qualification. Nafisseh received her Ph.D. in

1987, 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, Title VII of the Civil Rights Act of 1964, as

amended, 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.

1995), 903 P.2d 1377, 1378, 52 St.Rep. 1038, 1039 (citing Minnie,

849 P.2d at 214). Thus, we determine whether a genuine issue of

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. Howard v. Conlin

Furniture No. 2, Inc. (1995), 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 summary judgment 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 which would entitle a non-moving party to

recover. Howard, 901 P.Zd at 118. Once the moving party has met

its burden, the party opposing the summary judgment motion must

present material and substantial evidence, rather than conclusory

or speculative statements, to raise a genuine issue of material

fact. Howard, 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. Howard,

4
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. EMC asserts that "[olnce

the discipline was 'anchored' with a 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" nor was he assigned extra duties or

responsibilities. 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, the burden shifts to the defendant "to articulate

some legitimate, nondiscriminatory reason for the employee's

rejection." 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. 1817, 36 L.Ed.2d 668). Should the defendant carry this

burden, "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. -, 113 s.ct.

2742, 2752, 125 L.Ed.2d 407, 422.

At all times, the plaintiff retains the burden of persuasion

and, after the defendant has articulated a legitimate,

nondiscriminatory 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 a victim of intentional

6
discrimination. St. Marv's Honor Ctr., 113 S.Ct. at 2752; Burdine,

450 U.S. at 256. The plaintiff succeeds either directly by

persuading the 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. Brown v. Parker-Hannifin Corp. (10th

Cir. 1984), 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. Rule 56(c), M.R.Civ.P.; Howard, 901 P.2d at 118-19. As

the Seventh Circuit stated, "[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 for the salary

disparity between Abbas and Nafisseh. The District court

determined that the differences in the salaries were based on

factors other than sex. See County of Washington v. Gunther

(1981), 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

precisely the reason that summary judgment is generally

inappropriate in discrimination cases. _,Box 772 F.2d at 1378; see

also Sorba v. Pennsylvania Drilling Co. (3d Cir. 1987), 821 F.2d

200, 205, cert. denied, 484 U.S. 1019. 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, 745-

46, we stated that, in order to survive a motion for summary

judgment, the plaintiff has the initial burden to "adduce facts

which, if believed, support a reasonable inference that he or she

was 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). We now determine that this

process places a plaintiff, 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, first, to "adduce

facts which, if believed, support a reasonable inference that he or

she 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 traditionally employed in deciding motions

for summary judgment. 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 evidence, rather than mere conclusory and

speculative statements, to raise a genuine issue of material fact.

Howard, 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 Douqlas trial

analysis into the summary judgment context without 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. However, when, as here, the defendant makes a motion for

summary judgment, that construct does not work. In summary

judgment, 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. Accordingly, we overrule

that portion of Kenvon v. 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. The plaintiff must allege a prima facie

case of discrimination in 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 substantially the same work,

receives a higher salary. The employer seeking summary judgment

must then come forward with a legitimate nondiscriminatory reason

for the disparity. If the employer comes forward with a legitimate

nondiscriminatory 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, this does not mean that a plaintiff in a

discrimination action 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 action. Chauhan v. M. Alfieri Co. (3d Cir. 19901, 897

F.Zd 123, 127 (citing Healey v. New York Life Ins. Co. (3d Cir.

11
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 to pass this test, stating that "the

inconsistencies in [defendant's] explanation, as pointed out by

[plaintiff], present precisely the kind of 'inconsistencies and

implausibilities in [defendant's] proffered reasons' that could

support an inference of discrimination." 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 that we now establish for a plaintiff in a

discrimination case 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 that could support an inference of

discrimination. 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 the racial discrimination

context); Sorba, 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 position" rationale when they were hired or during

their tenure of 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 if Abbas were in fact an

"anchor"--he was never assigned any additional 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. Haqen, 863

P.2d at 416 (citing D'Agostino 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. Resolution of this discrepancy was a question of

material 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 of material fact, whether there was a

nondiscriminatory reason for the difference in salaries, should

have precluded the District Court from granting EMC's motion for

summary judgment.

Reversed and remanded for proceedings consistent with this

opinion.

We concur.

J stices

15
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. Nevertheless, I would have reached the

same result using 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 judgmentdiscrimination 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 traditionally required for pleading in nondiscrimination cases. Kenvon, 835 P.2d at 745.

16
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, 554 :

17 . . . a complaint must state something more than facts

which, at most, 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 claim will never survive a Rule

12(b) (6) motion to dismiss, much less a motion for summary

judgment.

The burden then shifts to the movant for summary judgment, the

employer. Under our decision here, under McDonnell-Douslas, and

under Kenvon, the test is the same; the employer must come forward

with a legitimate nondiscriminatory reason for the alleged

discriminatory 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. While

the majority reads the language used in Kenvon as imposing a trial

burden of proof on the plaintiff, I do not. I do not find anything

in either Kenvon or in Foster that leads me to believe that our

17
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, in the context of a non-discrimination case, we

recently 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, 52 St.Rep. 814, 815, a wrongful discharge-summary judgment

case. 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, fanciful or conclusory statements is insufficient.

Thornton, 868 P.2d at 638. 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 standard of proof in summary judgment-discrimination

cases. Nevertheless, 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 under which it is

reached. In this regard, I join in the analysis contained in

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, it makes little

difference in this case whether Kenvon is merely clarified or

overruled since either would produce the same result. Here,

however, 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 characterizes the

present decision as a "plurality" decision. 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? As is

apparent from the opinion, three of the Justices did agree that,

since the Court had changed Kenvon both procedurally and

substantively, Kenvon was, in effect, overruled. The 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, 93 S. Ct. 1817, 36 L. Ed. 2d 668, as applied in the

summary judgment context in Foster v. Arcata Associates, Inc.

(9th Cir. 1985), 772 F.2d 1453, which was adopted by this Court in

Kenvon. 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), 450 U.S. 248,

101 S. Ct. 1089, 67 L. Ed. 2d 207, for analyzing discrimination

cases. 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 the employer CXl articulate a legitimate,

nondiscriminatory 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, received a higher salary. The

District Court went on to find that EMC had established a

legitimate, nondiscriminatory 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. The District Court

24
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, which places the cart before the

proverbial horse. 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 lower pay--budgetary concerns and the "anchor

position" rationale; and (3) Abbas was never assigned any

additional duties one would expect of an "anchor position." 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 "anchor position" merely

referred to the need for a Ph.D. and there was absolutely no

evidence in the record that the term envisioned any additional

duties or responsibilities. 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, however, when EMC advertised for an assistant

professor 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. in the

information systems discipline. The Heists' 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:

Q: So you don't think -- you don't know then that the

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. If they were, I wasn't

aware of it. Nobody told me.

Nafisseh's subjective belief of discrimination does not create

a genuine issue of material fact. See Tozzi v. Joliet Junior

College (U.S.D.C. N.D. 111. 1989), 57 FEP 269, 272 (citing Andre v.

Bendix Corp. (7th Cir. 1988), 841 F.2d 172, 176, cert. denied

(1988), 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,

speculation, references to matters outside the

[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 analysis, a plaintiff

seeking to establish a pretext must, at a minimum, introduce

evidence that raises an inference that the employer's proffered

reasons are pretextual. 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 no genuine issue of fact, thereby

eliminating unnecessary trial, delay and expense." 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 Cole v. Flathead County

(1989), 236 Mont. 412, 416, 771 P.Zd 97, 99-100.

[T]he salutary purposes of summary judgment--avoiding

protracted, expensive and less

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

allegations of discrimination, absent any concrete

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.

N O 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. Turnage joins in the foregoing dissenting

opinion.