FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATIE MAYES, individually and for

and on behalf of dependent

beneficiaries; J.M., a minor child;

H.M., a minor child; M.M., a minor

child; G.M., a minor child; K.M., a

minor child,

Plaintiffs-Appellants,

v.

WINCO HOLDINGS, INC., an Idaho

corporation,

Defendant-Appellee.

No. 14-35396

D.C. No.

4:12-cv-00307-

EJL-CWD

OPINION

Appeal from the United States District Court

for the District of Idaho

Edward J. Lodge, District Judge, Presiding

Argued and Submitted December 8, 2016

Seattle, Washington

Filed February 3, 2017

Before: M. Margaret Mckeown, Richard C. Tallman,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen
2 MAYES V. WINCO HOLDINGS

SUMMARY*

Employment Discrimination

The panel reversed the district court’s summary judgment

in favor of the defendant on gender discrimination claims

under Title VII and the Idaho Human Rights Act, a claim

under the Consolidated Omnibus Budget Reconciliation Act,

and wage claims under the Fair Labor Standards Act and the

Idaho Wage Claim Act.

WinCo, a grocery store, fired the plaintiff, who

supervised employees on the night-shift freight crew, for

taking a stale cake from the store bakery to share with fellow

employees and telling a loss prevention investigator that

management had given her permission to do so.

As to the plaintiff’s gender discrimination claims, the

panel held that she presented sufficient evidence that

WinCo’s proffered reasons for terminating her were

pretextual because she offered ample direct evidence of

discriminatory animus, as well as specific and substantial

indirect evidence challenging the credibility of WinCo’s

motives.

As to the COBRA claim, there was a genuine dispute of

fact regarding the true reason for the plaintiff’s termination. 

The panel held that the district court therefore erred in

granting summary judgment because if WinCo fired the

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MAYES V. WINCO HOLDINGS 3

plaintiff for discriminatory reasons, rather than gross

misconduct, then she could be entitled to COBRA benefits.

The panel also reversed the district court’s summary

judgment on the federal and state wage claims, and it

remanded the case to the district court.

COUNSEL

Amanda E. Ulrich (argued) and DeAnne Casperson, Holden

Kidwell Hahn & Crapo P.L.L.C., Idaho Falls, Idaho, for

Plaintiffs-Appellants.

Anthony Dean Bennett (argued) and Pamela S. Howland,

Holland & Hart LLP, Boise, Idaho, for Defendant-Appellee.

OPINION

CHRISTEN, Circuit Judge:

Plaintiff Katie Mayes worked at WinCo, an Idaho Falls

grocery store, for twelve years. During her final years at

WinCo, Mayes supervised employees on the night-shift

freight crew. On July 8, 2011, Mayes was fired for taking a

stale cake from the store bakery to the break room to share

with fellow employees and telling a loss prevention

investigator that management had given her permission to do

so. WinCo deemed these actions theft and dishonesty. It also

determined that Mayes’s behavior rose to the level of gross

misconduct under the store’s personnel policies. WinCo

denied Mayes and her minor children benefits under the

Consolidated Omnibus Budget Reconciliation Act of 1985
4 MAYES V. WINCO HOLDINGS

(COBRA). WinCo also denied Mayes credit for accrued

vacation days.

Mayes argues that WinCo fired her not for theft and

dishonesty but in order to put a man in charge of the freight

crew. She brings three types of claims against WinCo:

(1) gender discrimination claims under Title VII of the Civil

Rights Act of 1964 and the Idaho Human Rights Act; (2) a

claim under COBRA; and (3) wage claims under the Fair

Labor Standards Act and the Idaho Wage Claim Act. The

district court granted summary judgment to WinCo on all

claims. We have jurisdiction under 28 U.S.C. § 1291, and we

reverse.

I. STANDARD OF REVIEW

We review a district court’s order granting summary

judgment de novo. Albino v. Baca, 747 F.3d 1162, 1168 (9th

Cir. 2014) (en banc). “A grant of summary judgment is

appropriate when ‘there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a

matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). For

purposes of summary judgment, we must accept the

nonmoving party’s evidence as true. T.W. Elec. Serv., Inc. v.

Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir.

1987). “Inferences must also be drawn in the light most

favorable to the nonmoving party.” Id. “If the nonmoving

party produces direct evidence of a material fact, the court

may not assess the credibility of this evidence nor weigh

against it any conflicting evidence presented by the moving

party.” Id.
MAYES V. WINCO HOLDINGS 5

II. BACKGROUND

A. Factual History1

Mayes, a single mother of seven children, began working

for WinCo in 1999. WinCo promoted her to a Person in

Charge (PIC) in 2006. As a PIC, Mayes supervised

employees on the night-shift freight crew. She also began

serving in a leadership role on the store safety committee. 

According to assistant manager Scott McCartney, Mayes was

a hard worker who strived to follow store rules.

Sometimes stocking the store required long hours from

the night-shift freight crew. New freight had to be shelved on

the first of the month, and if the job was not finished by the

end of the freight crew’s shift, crew members clocked out and

Mayes was left with thousands of items to shelve. Mayes

testified that when she first became a PIC, Mark Wright, then

WinCo’s general manager, gave her permission to take cakes

from the store bakery to motivate the crew to stay past the

end of their shifts and boost their morale. Wright told Mayes

to record the cakes in the in-store use log, and Mayes

followed this policy.

In addition to Wright, other members of the management

team knew about the practice of taking cakes for the nightshift freight crew. Mayes testified that when assistant

managers Scott McCartney and Brad Clark worked at the

store during Mayes’s shift, Mayes discussed with them

whether to get a cake for the crew before entering it into the

in-store use log. Mayes brought the cakes to the break room,

1 We present the following facts in the light most favorable to Mayes,

the nonmoving party, to the extent supported by the record.
6 MAYES V. WINCO HOLDINGS

where the assistant managers sometimes ate cake with the

crew. According to Mayes and a number of other employees,

anyone who saw the cakes would have known that they had

not been purchased from the store because the cakes did not

have receipts attached and store policy required employees to

attach receipts to purchased items. Several WinCo

employees gave sworn statements that taking cake from the

store to the break room was a common, accepted practice by

PICs and management at WinCo.

In January 2011, the bakery department instructed Mayes

and the other freight crew PIC, Andrew Olson, that they

should take cakes only from the “stales” cart. Stale cakes

usually went to a food bank because the store could no longer

sell them. The bakery department told Mayes that she did not

need to enter the cake from the stales cart into the in-store use

log because the cakes had already been removed from the

store inventory and tracked as lost product. To let the bakery

staff know that the freight crew had taken a stale cake, Mayes

left the universal product code (UPC) sticker on the stales

cart. She instructed her crew that if they ever took a cake for

a special event, they should take it only from the stales cart. 

Mayes discussed this practice with McCartney and Clark. In

his deposition, Olson, the other freight crew PIC, confirmed

that he, too, understood that PICs could take cakes from the

stales cart.

At about the same time the bakery department instructed

Mayes to take cakes only from the stales cart, Mayes started

experiencing difficulties with Dana Steen, the general

manager as of 2007. According to Mayes, Steen replaced

Mayes as chair of the safety committee with a male

employee, and when she asked Steen for an explanation,

Steen told her that “a male would be better in that position.” 
MAYES V. WINCO HOLDINGS 7

Mayes testified that when she told McCartney that she

thought Steen had treated her unfairly, McCartney advised

Mayes to “stay away” from Steen because Steen said she did

not like that “a girl” was running the freight crew.

Mayes further asserts that in early 2011, Steen criticized

her because she had children and could not stay late or come

in on her days off. Mayes testified that she told Steen that she

had to leave early to pick up her children from school, and

that Steen said “kids,” and walked away. According to

Mayes, Steen did not make similar comments about kids to

Olson, who sometimes also left early because he had to care

for his children.

On July 7, 2011, bakery management notified Steen that

someone had taken a fresh cake from the bakery store shelves

and eaten it in the employee break room. Steen initiated an

investigation and reviewed six months of store surveillance

video. She saw video footage of freight crew employee Nick

McInelly taking the cake. Steen later testified that she also

saw footage of Mayes taking one cake from the stales cart on

June 26, 2011 and only turned the investigation over to the

loss prevention department after she had seen that footage.

Loss prevention investigator Scott Samuelson

investigated the cake-taking reports. He visited the Idaho

Falls WinCo store on July 7, 2011, to review video footage,

in-store use logs, and sales records for the nights that

McInelly and Mayes had taken cakes to the break room. 

Another loss prevention specialist told Samuelson that

because management would not be at the store on the night of

July 7, McInelly might try to take another cake that night. 

Watchinglive footage from a surveillance camera, Samuelson
8 MAYES V. WINCO HOLDINGS

observed McInelly take another cake in the early morning

hours of July 8.

Confronted bySamuelson, McInelly said that Mayes gave

him permission to take the cake. But when Samuelson

interviewed Mayes, she said that she only gave McInelly

permission to take cakes from the stales cart. Mayes also told

Samuelson that the previous general manager, Wright, had

given her permission to take cakes. Wright denied giving

Mayes this authorization.

On the morning of July 8, Steen called Samuelson to

discuss the results of the investigation. Steen was on vacation

and only available over the telephone. Samuelson then turned

the results of his investigation over to WinCo’s human

resources department (HR). Both McInelly and Mayes were

fired later that day. After Mayes was fired, WinCo replaced

her with a man who had only one month of freight crew

experience and no supervisory experience at WinCo.

McCartney prepared the termination paperwork and told

Mayes that WinCo was terminating her for theft and

dishonesty. He presented her with a document banning her

from WinCo property for 100 years. But McCartney denied

making the decision to fire Mayes and suggested that HR and

Samuelson were the decisionmakers. Samuelson denied any

knowledge of who made the decision to terminate Mayes.

During Mayes’s unemployment compensation hearing,

Steen testified that she was involved in the termination

decision, and WinCo listed Steen in an interrogatory answer

as a person who participated in the decision to terminate

Mayes. But in Steen’s deposition, she, too, denied knowing

who made the final decision to fire Mayes and said that she
MAYES V. WINCO HOLDINGS 9

did not participate in the decision. Steen suggested HR and

loss prevention specialist Don Hook made the termination

decision. But HR director Karen Stinger testified that she did

not remember being involved in Mayes’s termination, and

Hook testified that, other than speaking with Wright, he

played no role in the decision to terminate Mayes. Who

ultimately decided to fire Mayes for theft and dishonesty thus

remains a mystery.

Because the definition of “gross misconduct” in WinCo’s

personnel policies includes theft and dishonesty, WinCo

denied Mayes COBRA benefits. See 29 U.S.C. § 1163(2)

(excluding termination for “gross misconduct” from list of

qualifying events). As a result, Mayes was unable to elect

continued coverage for herself and her minor children. 

WinCo also refused to pay Mayes her accumulated vacation

pay, claiming that it had no obligation to do so under the

store’s Collective Bargaining Agreement (CBA). Mayes

appealed to the employee grievance committee, but the

committee upheld the termination decision.

B. Procedural History

Mayes sued WinCo on June 15, 2012. WinCo moved for

summary judgment on all claims. The district court granted

the motion on April 23, 2014, ruling that although Mayes

established a prima facie case of discrimination, she did not

present sufficient evidence of pretext for her claims to survive

summary judgment. The district court also found that,

because WinCo terminated Mayes for gross misconduct,

WinCo properly denied her COBRA benefits and credit for

accrued vacation under the CBA. Mayes appeals.
10 MAYES V. WINCO HOLDINGS

III. ANALYSIS

A. Gender Discrimination Claims

Title VII of the Civil Rights Act of 1964 provides that

“[i]t shall be an unlawful employment practice for an

employer . . . to fail or refuse to hire or to discharge any

individual . . . because of such individual’s . . . sex . . . .” 

42 U.S.C. § 2000e-2(a)(1). The Idaho Human Rights Act

mirrors the protections of Title VII, so we need not conduct

a separate analysis of Mayes’s state claim. See Peterson v.

Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004); see

also Idaho Code § 67-5909.

Title VII’s burden-shifting formula requires that plaintiffs

first establish a prima facie case of discrimination. 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973); Vasquez v. Cty. of L.A., 349 F.3d 634, 640 (9th Cir.

2003), as amended (Jan. 2, 2004). If the plaintiff succeeds in

doing so, the burden shifts to the employer “to articulate a

legitimate, nondiscriminatory reason for its allegedly

discriminatory conduct.” Vasquez, 349 F.3d at 640. If the

employer articulates “such a reason, the burden shifts back to

the [employee] to show that the employer’s [stated] reason is

a pretext for discrimination.” Id.

Here, the district court concluded that Mayes established

a prima facie case under McDonnell Douglas, and WinCo

concedes this point on appeal. Similarly, Mayes does not

contest that WinCo proffered legitimate, nondiscriminatory

reasons for terminating her. The outcome of Mayes’s appeal

turns on whether she presented sufficient evidence that

WinCo’s proffered reasons were pretextual.
MAYES V. WINCO HOLDINGS 11

An employee can prove pretext either: (1) “directly, by

showing that unlawful discrimination more likely motivated

the employer”; or (2) “indirectly, by showing that the

employer’s proffered explanation is unworthy of credence

because it is internally inconsistent or otherwise not

believable.” Fonseca v. Sysco Food Servs. of Ariz., Inc.,

374 F.3d 840, 849 (9th Cir. 2004) (internal quotation marks

omitted) (quoting Lyons v. England, 307 F.3d 1092, 1113

(9th Cir. 2002)). The district court ruled that Mayes failed to

raise a genuine issue of material fact regarding pretext, either

directly or indirectly. We disagree.

Direct evidence of discrimination is often not easy to

come by. Here, however, Mayes has offered multiple

examples of direct evidence that implicate gender

discrimination. Direct evidence of discriminatory intent

consists of “evidence which, if believed, proves the fact [of

discriminatory animus] without inference or presumption.” 

Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654,

662 (9th Cir. 2002) (alteration in original) (quoting Godwin

v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)). 

“Racist or sexist statements constitute such ‘direct evidence’

of discrimination.” Id. (quoting Godwin, 150 F.3d at 1221). 

Direct evidence need not be “specific and substantial.” 

Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027,

1038 (9th Cir. 2005).

Mayes offered ample direct evidence of discriminatory

animus: (1) Steen’s alleged comment that a man “would be

better” leading the safety committee; (2) Steen’s alleged

comment that she did not like “a girl” running the freight

crew; and (3) Steen’s alleged criticism of Mayes, but not her

male counterpart, for leaving work early to care for her

children. These remarks directly concerned Mayes and the
12 MAYES V. WINCO HOLDINGS

decisional process for retaining and promoting employees. 

Mayes’s failure to give precise dates for the remarks or show

a closer temporal link between the comments and her

termination does not defeat her claims. See id. (“While a

factfinder is free to conclude at trial that the plaintiff’s

account is insufficiently detailed to be believable, the district

court must refrain from making such credibility assessments

on summary judgment.”); cf. DeHorney v. Bank of Am. Nat’l

Trust & Sav. Ass’n, 879 F.2d 459, 467–68 (9th Cir. 1989)

(affirming an order granting summary judgment on the basis

that there was no “nexus” between the discriminatory remark

and plaintiff’s termination where plaintiff failed to present

evidence that the decisionmaker heard discriminatory

statements or knew plaintiff’s race).

WinCo argues that Steen’s comments cannot constitute

direct evidence of discriminatory animus because Steen did

not fire Mayes. But the record on this point is murky, at best. 

In an interrogatory answer, WinCo admitted that Steen

participated in the termination decision. Steen also testified

in the unemployment hearing that she was involved in the

decision. Steen further stated in her deposition that during

the cake-taking investigation, she was in contact with

McCartney, the employee who informed Mayes that she was

being terminated.

Moreover, the animus of a supervisor can affect an

employment decision if the supervisor “influenced or

participated in the decisionmaking process.” DominguezCurry, 424 F.3d at 1039–40 (emphasis added). Even if the

supervisor does not participate in the ultimate termination

decision, a “supervisor’s biased report may remain a causal

factor if the independent investigation takes it into account

without determining that the adverse action was, apart from
MAYES V. WINCO HOLDINGS 13

the supervisor’s recommendation, entirely justified.” Staub

v. Proctor Hosp., 562 U.S. 411, 421 (2011).

WinCo argues that there is insufficient evidence that

Steen affected its “independent” investigation into Mayes’s

conduct for two reasons. First, WinCo disputes when Steen

learned that the cake-taking investigation would lead to

Mayes. But Steen acknowledged during the unemployment

compensation hearing that she contacted loss prevention only

after viewing surveillance footage of Mayes taking stale cake. 

Second, WinCo argues that it had a good-faith belief that

Mayes lied about having permission to take cake and that this

insulates the termination decision from any discriminatory

motive Steen may have had. This argument fails because no

one at WinCo admitted to making the decision to fire Mayes,

and it is impossible to know who believed what at the time

Mayes was fired. Drawing all reasonable inferences in

Mayes’s favor, we must presume that Steen’s alleged bias

affected the employment decision. See Chuang v. Univ. of

Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1129 (9th Cir. 2000).

Nor do Steen’s comments fall within the ambit of stray

remarks that we have held insufficient to establish

discrimination. See Merrick v. Farmers Ins. Grp., 892 F.2d

1434, 1438–39 (9th Cir. 1990) (holding that a hiring

executive’s comment that he chose “a bright, intelligent,

knowledgeable young man” over the plaintiff was merely a

stray remark that could not, without more, establish age

discrimination). If Mayes’s testimony is believed, reasonable

jurors could decide that Steen’s comments, including the

alleged comment that a man “would be better” as chair of the

safety committee, demonstrate Steen’s overt hostility to

having women in leadership roles.
14 MAYES V. WINCO HOLDINGS

WinCo argues that we must take into account the context

in which Steen’s alleged comments were made and that the

evidence here falls short of the evidence that established

discriminatory animus in cases such as Dominguez-Curry,

424 F.3d at 1038, and Cordova v. State Farm Insurance Cos.,

124 F.3d 1145, 1149 (9th Cir. 1997). In Dominguez-Curry,

a supervisor allegedlymade sexist comments such as “women

have no business in construction,” and we rejected the

defendant’s argument that these were stray remarks. 

424 F.3d at 1038. Similarly, in Cordova, a supervisor

allegedly made two disparaging comments about a MexicanAmerican employee, including calling the employee a “dumb

Mexican.” 124 F.3d at 1147–49. We see no distinction

between the alleged bigoted remarks in these cases and the

alleged comments that a man would be better as chair of the

safety committee and that Steen did not like “a girl” running

the freight crew or the disparaging insinuations about Mayes

leaving work to pick up her children.

Finally, contrary to WinCo’s position, the fact that Steen

is also a woman does not preclude a finding of discriminatory

animus. Nearly twenty years ago, the Supreme Court held in

no uncertain terms, “If our precedents leave any doubt on the

question, we hold today that nothing in Title VII necessarily

bars a claim of discrimination ‘because of . . . sex’ merely

because the plaintiff and the defendant (or the person charged

with acting on behalf of the defendant) are of the same sex.” 

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79

(1998) (alteration in original).

Mayes’s direct evidence alone is sufficient to defeat

summary judgment, see Dominguez-Curry, 424 F.3d at 1039

(“[W]e have repeatedly held that a single discriminatory

comment by a plaintiff’s supervisor or decisionmaker is
MAYES V. WINCO HOLDINGS 15

sufficient to preclude summary judgment for the employer.”),

but here, the claim is further bolstered by indirect evidence. 

To show pretext using circumstantial evidence, in contrast to

direct evidence, “a plaintiff must put forward specific and

substantial evidence challenging the credibility of the

employer’s motives.” Vasquez, 349 F.3d at 642. Mayes met

this burden for purposes of summary judgment.

Multiple employees testified that it was a common,

accepted practice—rather than an offense punished by

termination—for PICs to take cakes to the break room. 

Olson, the other PIC for the freight crew, stated that he

understood that PICs could take stale cakes from the stales

cart. That WinCo purportedly fired Mayes for following a

practice described by some witnesses as “common,” and that

another PIC thought was authorized, is specific and

substantial evidence that WinCo’s proffered explanation for

her termination is not believable. Mayes could not have

stolen a cake that she had permission to take. Nor could

management have reasonably thought that Mayes lied about

having permission if they knew that PICs were allowed to use

stale cakes to motivate employees.

Additionally, Mayes presented evidence that WinCo

replaced her with a less qualified male employee. Evidence

that an employer replaced a plaintiff with a less qualified

person outside the protected class can be evidence of pretext. 

See Perez v. Curcio, 841 F.2d 255, 258 (9th Cir. 1988)

(reversing a grant of summary judgment on an age

discrimination claim where plaintiff presented evidence that
16 MAYES V. WINCO HOLDINGS

a younger, less qualified person was chosen to replace her).2

The man who replaced Mayes had only worked for WinCo

for about three weeks, had no supervisory experience at

WinCo, and could only work during limited hours. In

contrast, Mayes received no negative performance reviews

over the course of twelve years with WinCo, earned

promotions within the company, and held a supervisory

position for approximately five years.

WinCo argues that replacing Mayes with a male

employee is not evidence of pretext because Steen played no

role in hiring Mayes’s replacement. The record is to the

contrary. McCartney testified that Steen participated in the

interviews for Mayes’s replacement and had the “final say”

on the new PIC for the freight crew. In her deposition, Steen

acknowledged that she “weigh[ed] in” on the decision.

In sum, circumstantial evidence raises a material dispute

of fact regarding pretext. This is particularly true when the

circumstantial evidence is viewed in conjunction with the

powerful direct evidence of Steen’s discriminatory

comments. It was error to dismiss Mayes’s discrimination

claims.

2 The Second Circuit case cited by WinCo, Brennan v. Metropolitan

Opera Assoc., Inc., 192 F.3d 310 (2d Cir. 1999), is not to the contrary. 

WinCo argues that this case stands for the proposition “that evidence that

plaintiff was replaced by a substantially younger employee, while

sufficient to meet her prima facie case of age discrimination, was

insufficient to show pretext.” It does not. The Second Circuit held only

that the plaintiff had not presented sufficient evidence of pretext for her

age discrimination claim to survive summary judgment because her

employer thought that the plaintiff and her replacement were the same age

based on the plaintiff’s own misrepresentations. Id. at 313, 317.
MAYES V. WINCO HOLDINGS 17

B. COBRA Claim

Generally, COBRA entitles an employee with employerprovided health insurance to elect continued coverage for a

defined period of time after the end of employment. See

29 U.S.C. § 1161(a). An employee is not entitled to this

benefit if she is terminated for “gross misconduct,” but the

statute does not define “gross misconduct.” See 29 U.S.C.

§ 1163(2).

As discussed, Mayes presented both direct and indirect

evidence that the reasons stated for her termination were

pretextual, and we conclude there is a genuine dispute of

material fact regarding the true reason for her termination. If

WinCo fired Mayes for discriminatory reasons, Mayes may

be entitled to COBRA benefits. The district court therefore

erred in dismissing Mayes’s COBRA claim at summary

judgment.

C. Wage Claims

WinCo argues that the CBA precludes Mayes’s federal

and state wage claims. The CBA provides that “[v]acation

earned but not taken will not be paid to employees terminated

for gross misconduct under the Company Personnel Policies

defining gross misconduct.” Because Mayes presented

sufficient evidence to create a genuine dispute of material fact

regarding why WinCo fired her, Mayes may be entitled to

payment for accrued vacation time, and this claim should not

have been dismissed at summary judgment.
18 MAYES V. WINCO HOLDINGS

CONCLUSION

We conclude that it cannot be determined at summary

judgment whether WinCo’s stated reasons for firing Mayes

were pretextual. We reverse the order granting summary

judgment on all claims and remand for proceedings consistent

with this opinion.

Appellee shall bear costs on appeal.

REVERSED AND REMANDED.