F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

K A T I E M A

Y E S , 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

.

W I N C O H O L D I

N G S , I N C ., an I daho corporation, Defendant-Appellee. N o. 14-35396

D.C. No. 4:12-cv-00307- EJ L -CW D

OPI NI ON

A ppeal from the United States District Court

f or the District of I daho Edward J . L o dg e, District J udg e, Presiding

Arg u ed and Submitted December 8, 2016

Seattle, W a shing ton

F iled F ebruary

3, 2017

B efore: M. Marg aret Mckeown, Richard C. Tallman, and Morg an Christen, Circuit J udg es.

Opinion by J udg e ChristenM A Y E S V

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SUMMARY *

Em ploym ent Discrim ination

The panel reversed the district court’s summary judg ment in favor of the defendant on g end er discrimination c laims

u n d er Title VI I and the I daho Human Rig hts Act, a c l a i m under the Consolidated Omnibus B udg et Reconciliation Act, and wag e claims under the F air L abor Standards Act and the I daho W a g e Claim Act.

W inCo, a g ro c e r y store, fired the plaintiff, w ho supervised employ ees on the nig ht-shift f r e ig ht crew, for taking a stale cake from the store bakery to share with fellow employ e es and telling a loss prevention investig ator that
manag ement had g iven her permission to do so.

As to the plaintiff’s g ender discrimination claim s , the panel h e l d that she presented sufficient evidence that W inCo’s proffered reason s f o r terminating her were pretex tual because she offered a mple direct evidence o f discriminatory animus, as well as specific a n d substantial indir e ct evidence challeng ing the credibility of W inCo’s motives.

As to the COB RA claim, ther e was a g enuine dispute o f fact r eg arding the true reason f or the plaintiff’s termination. The panel held that the district court therefore erred i n g ranting summary judg ment because i f W inCo f ired the

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M A Y E S V

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plaintiff for discriminatory r easons, rather than g ross misconduct, then she could be entitled to COB RA benefits.

Th e p a n el also reversed the district court’s summary judg ment on the federal and state w a ge c l aims, and it remanded the case to the district court.

COUNSEL

Amanda E. Ulrich (arg

ued) and DeAnne Casperson, Holden Kidwe l l H ahn & Crapo P.L

. L .C., I daho F alls, I daho, for Plaintiffs-Appellants.

Anthony Dean B ennett ( arg ued) and Pamela S. Howland, Holland & H art L L P, B o ise, I d aho, for Defendant-Appellee.

OP INION

CHRI STEN, Circuit J udg e:

P l a intiff Katie May es worked at W inCo, an I daho F all s g rocery store, for twelve y ears. During h e r f i nal y e ars at W inCo, May es supervised employ ees on the n ig ht-shift freig ht c rew. On J uly 8, 2 0 1 1, May es was fired for taking a stale cake from the store bakery t o t h e b reak room to share wi t h f e llow employ e es and telling a loss prevention investig ator that manag ement had g iven her permission to do

so. W inCo deemed these actions theft and dishonesty

. I t also determined that May es ’ s behavior r ose to the level o f g ross misconduct u n der the store’s personnel policies. W inCo denied May es and her minor c hildren benefits under t he Conso l i d a ted Omnibus B udg e t Reconciliation Act of 1985M A Y E S V

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(COB RA). WinCo also d en i ed May es credit for accrued vacation day s.

May es arg ues that W inCo fired he r n o t for theft a nd dishonesty but in order to put a man in charg e of the freig ht

crew. She bring s three ty pes of claims ag ainst W inCo: (1) g e nder discrimination claims under Title VI I of the Civil Rig hts Act of 1964 and the I d a h o H u m a n Rig h ts Act; (2) a claim under COB RA ; a n d (3) wag e claims u nder the F air L abor Standards Act and the I daho W ag e C l aim Act. The di strict court g ranted summary judg ment to W inCo on all claims. W e have jurisdiction under 28 U.S.C. § 1291, and we

reverse.

I. STANDARD OF REVIEW

W e review a district court’s order g ranting summ a ry judg ment de novo. Albino v

. Baca
, 747 F .3d 1162, 1168 (9th Cir. 2 0 14) ( en banc). “ A g rant of summary judgm e n t is appropriate when ‘there is no g e nuine dispute a s to any material f

act and the movant is entitled t o j u d g ment as a matter of law.’” Id. ( quoting Fe d

. R. Civ. P. 56(a)). F o r purposes of summary judg ment, we must a ccept the nonmoving party ’s evidence as true. T.W

. Elec. Serv., Inc. v

. Pac. Elec. Contractors A ss’n
, 809 F .2d 626, 6 3 1 (9th Cir. 1987 )

. “ I n f

erences must also be drawn in the lig ht most favorable to the nonmoving part y

. ” Id. “I f the nonmoving
pa rt y produces direct evidence of a material fact, the court may not a ssess the credibility o f this evidence n or weig h
ag ainst i t a n y conflicting evidence presented by the moving party .” Id.M A Y E S V

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II. BACK G R OUND

A. F actual History 1

May es, a sing le mother of seven children, beg an w orking for WinCo in 1999. W inCo promoted her to a Person in C h a r g e (PI C) in 2006. As a PI C, May es superv i s e d employ e es on the nig ht-shift freig ht crew. She al so b eg an serving in a l e a d e r ship role on the store safety committee. According to assistant manag er Scott McCartney
, May es was a hard worker who strived to follow store rules.

S ometimes stocking the store required long hours f r om the nig ht-shift freig ht crew. New freig ht had to be shelved on the first of the month, and if the jo b was not f inished by the end of the f

reig ht crew’s shift, crew members clocked out a nd May es w as left with thousands of items to shelve. May e s testified that when she first became a PI C, Mark W rig h t, then W inCo’s g eneral manag e r, g ave her permission to take cakes from the store bakery to motivate the cr e w t o stay past the end of their shifts a

n d boost their morale. W rig ht told May e s to record the c a k e s i n the in-store u se log
, and May e s followed this policy

.

I n addition to W rig ht, other members of the manag ement team knew a

bout the p r a ctice of taking cakes for the nig h tshift f reig ht crew. May es testified that when assistant
manag ers Scott McCartney and Br ad Clark w orked a t the
store during May es’s shift, May es disc u s s e d with them whether to g et a cake for the crew before entering it into the in-store use log

. May es broug ht the cakes to the break room,

1 W e p resen t th e f

o llo w in g f

acts i n th e lig h t m o st f

av o rab le t o May es, th e n o n m o v in g p arty , to th e ex ten t su p po rted b y

th e reco rd

.M A Y E S V

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where the assistant manag ers sometimes a t e cake w ith the

crew. A ccording to May es and a number of other employ ees, any one who saw th e cakes would have known that they h ad not been p urchased from the store because the cakes did not have receipts attached and store policy required employ ees to attach receipts to purchased items. Several W inCo employ e es g ave sworn state m ents that taking cake from the
store to the break room was a common, accepted practice b y PI Cs and manag e ment at W inCo.

I n J a nuary 2011, the bakery department instructed May e s and the other freig ht crew PI C, Andrew Olson, that they should take cakes only f

rom the “stales” cart. Stale cakes usually went to a food bank because the store could n o long er sell them. The bakery department told May es that she did not need to e nter the cake from the stales cart into the in-store use log because the cakes had a lread y b e en removed from the
store inventory and tracked as lost product. To let the bakery staff know that the freig ht crew had taken a stale cake, May e s left the universal product code (UPC) sticker on the stales
cart. She instructed h er c rew that if they ever took a cake for

a special e vent, they should take it o nly f r o m the stales cart. May es discussed this practice w ith McCartney and Clark. I n his deposition, Olson, the other freig ht crew PI C, confirmed that h e, too, und e r s t o od that PI Cs could take cakes from the stales cart.

At about the same time the bakery department instructed May es to take cakes only from the stales cart, May es started

ex p eriencing dif

ficulties with Dana Steen, the g eneral
manag er as o f 2007. A ccording to May es, Steen r e p l a c ed May es as chair of the safety com mittee with a male employ e e, and w hen she asked Steen fo r an ex p lanation, Steen told her that “a male would be better in that position.”M A Y E S V

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M a y e s testified that when she told McCartney that s h e thoug ht Steen had tre a t e d her unfairly
, McCartney advised May es to “stay away

” from Steen because Steen said she did not like that “a g irl” was running the freig ht crew.

May es further asserts that in early 2011, Steen criticiz ed her because she had c hildren and could n ot stay late or come in on h er day s off. May es testified that she told Steen that she had to leave e a rly to pick up her children from school, a nd that Steen said “kids,” and walked awa y

. According to May es, Steen di d not make similar comments about kids to Olson, who sometimes also left early because he had to care for his children.

On J uly 7, 2011, bakery manag ement notified Steen that

someone had taken a f

resh c ake f

rom the bakery store shelves

a n d eaten it in the employ e e break r oom. Steen initiated a n investig ation a

nd reviewed six months o f store surveillance video. She saw video footag e of freig ht crew employ ee Nick McI nelly taking the c ake. Steen later testified that s h e also

saw footag e of May es taking one cake from the stales c art on J une 26, 2011 and only turned the investig ation over to the loss prevention department after she had seen that footag e.

L oss prevention i n v e s t i ga t o r S c o t t S a muelson investig ated the cake

- t a k ing reports. H e visited the I daho F alls W inCo store o n J uly 7, 2 011, to review v ideo footag e , in-store u s e log s, and sales records for the nig hts that McI nelly and May es had taken cakes to t h e b r eak room. Another loss pre vention specialist told Samuelson that because manag ement would not b e at the store on the nig ht o f J ul y 7, McI nelly mig ht try to take another c ake that nig ht. Wa t c h i n g l i v e f

ootag e from a surveillance camera, SamuelsonM A Y E S V

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observed McI nelly take another c ake in th e e arly morning hours of J u ly

8.

Confronted by Samuelson, McI nelly said that May es g ave him permissio n to take the cake. B u t when Samuelson interviewed May es, she said that s h e only g ave McI nelly permission to take cakes from the stales c art. May es a lso told Samuel s o n that the previous g eneral manag er, W rig ht, h ad
g iven her permission to take ca k es. W rig ht denied g iving May es this authoriz ation.

On the morning of J u ly 8, Steen c a l l e d S a muelson to discuss the results of the investig a tion. Steen was on vacation and only available over the telephone. Samuelson then turned the results of his i n v estig a tion o ver to W inCo’s human

resources department (HR). B oth McI nelly and May es were fired later that day . After Mayes was fired, W inCo replaced her with a man who had only one month of frei gh t cr ew

ex p erience and no supervisory ex p erience at W inCo.

McCartney prepared the termination paperwork and told May es that W inCo was terminating her f or theft a

nd dishonesty

. He p resented her with a document banning her from W inCo property

for 100 y e ars. B ut McCartney denied making the decision to fire May es a nd sug g ested that HR a

nd Samuelson were the decisionmakers. Samuelson denied any knowledg e of who made the decision to terminate May es.

During May es’s unemploy ment compensation hearing
, Steen testified t h a t s he w as involved in the termination decision, and W inCo listed Steen in an interrog atory answer

a s a person w ho participated in the decision to ter m i n a t e May es. B ut in Steen’s deposition, she, too, denied knowing

w h o m a d e the final decision to fire May es and said that s h eM A Y E S V

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did n ot participa t e i n t he d e c ision. Steen sug g ested HR a nd loss prevention specialist Don H ook made the termination decision. B ut HR director Karen Sting er testified that she did
not remember being inv o lved in May es’s termination, a nd Hook testified that, other than speaking with W rig ht, he play ed n o role in the decision t o terminate May es. Who ultimately decided to fire May es for theft and dishonesty thus remains a my stery

.

B e cause the definition o f “g r oss misconduct” in W inCo’s
pe r sonnel policies includes theft and dishonesty
, W inCo denied May es COB RA benefits. See 29 U.S.C. § 1 1 6 3(2) (ex cluding termination for “g r oss misconduct” f r o m list o f
q u a l i f y ing events). As a result, May es was unable to ele ct continued coverag e for h erself and her minor children. W inCo also refused to pay May es her accumulated vacation
pay , claiming that it had no oblig ation t o d o s o under the store’s Collective B arg aining Ag reement (CB A)

. M ay e s appealed to the employ ee g rievance committee, but the committee upheld the termination decision.

B. P rocedural History

May es sued W inCo on J u ne 1 5, 2012. W inCo moved for
summary judg ment on all claims. The district court g ranted the motion on April 2 3
, 2 014, ruling that althoug h May e s

e s t a blished a prima facie case of discrimination, she d id n o t present sufficient evidence of pretex t for her claims to survive
summary j u d gm e nt. The d istrict court also found that, because W inCo terminated May e s f or g ross misconduct, W inCo properly denied h er COB RA benefits and cr e d it for accrued vacation under the CB A. May es appeals.M A Y E S V

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III. ANALYSIS

A. G ender Discrim ination Claim s

Title V I I of the Civil Rig h t s A c t o f 1964 provides that “[ i] t shall be an unlawful employ ment pract i ce for an employ e r

. . . to fail or refuse to hire or to d i s charg e any individual

. . . because of such indiv i d u a l ’ s

. . . sex

. . . . ” 42 U.S.C. § 2000e-2(a)(1). The I d a h o Human Rig hts A ct mirrors the p rotections of T itle V I I
, so w e need not conduct

a separate analy sis of May e s’s state claim. See Peterson v

. Hewlett-Packard Co.
, 358 F

. 3d 599, 603 (9th Cir. 2004); see also I d aho Code § 67-5909.

Title VI I ’ s burden-shifting formula requires that plaintiffs first establish a prima fac i e 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 (9 t h Cir. 2003), as amended (J an. 2
, 2004). I f the plaintiff succeeds in doing so, the burden shifts to the employ e r “to a rticulate a leg itim a t e, nondiscriminatory reason for its alleg edly discriminatory conduct.” V a squez , 3 4 9 F .3d a t 640. I f the employ e r articulates “such a r eason, the burden shifts back to the [ employ ee] to show that the employ e r’s [ stated] reason is a pretex t for discrimination.” Id.

Here, the district court c o ncluded that May es e stablished

a prima facie case under McDo n n e l l Douglas
, and W inCo concedes this point on appeal. Similarly
, May es d o e s not contest that W inCo proffered l eg itimate, nondiscriminatory

reasons for terminating her. The outcome of May es’s appeal
t u rns on whether she presented sufficient evidence t h at W inCo’s proffered reasons were pretex tual.M A Y E S V

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An e mpl o y e e can p rove pretex t e ither: (1) “directly
, b y showing that unlawful discrimination more likely motivated the employ er”; o r (2) “ indirectly
, by showing that the employ e r’s proffered e x planation is unworthy of credence bec a use it is internally inconsistent or otherwise not believable.” Fonseca v. S ysco Food S

ervs. of Ariz., I

n c. , 374 F .3d 840, 849 ( 9 t h Cir. 2004) (internal quotation marks omitted) (quoting Lyons v

. E n gland
, 307 F .3d 1092, 1113 (9th Cir. 2002)). The district court ruled that May es failed to raise a g enuine issue o f material f act reg arding pretex t, either directly or indirectly . W e disag r ee.

Direc t e v i dence of discrimination is often not easy to

come by

. H ere, however, May es has offered multiple

ex a mples of direct evidence that i m plicate g ender discrimination. Direct evidence of d iscriminatory intent consist s of “evidence which, if b elieved, proves the f a ct [ o f discriminatory animus] without infere n ce or p resumption

. ” Aragon v. R epublic Silver State Disposal Inc.
, 292 F .3d 654, 662 (9th Cir. 2 002) (alteration in orig ina l) ( quoting Godwin

v. H unt W esson, Inc.
, 150 F

. 3d 1217, 1 2 2 1 (9th Cir. 1998)). “Racist or sex ist statements constitute such ‘direct e vidence’ of discrimination.” Id. (quoting Godwin , 150 F .3d at 1221). Direct evidence n e e d n ot be “specific and substantial.” Dominguez-Curry v. Nev. Transp. Dep’t
, 424 F .3d 1027, 1038 (9th Cir. 2005).

May es o ffered ample direct ev i dence of discriminatory animus: (1) Steen’s alleg ed comment that a man “would be better” leading the safety c o m m ittee; (2) Steen’s alleg ed
comment that she did not li k e “a g irl” running the freig ht
crew; a nd (3) Steen’s alleg ed criticism of May es, but not her male counterpart, for lea v i n g wo rk early to care for her children. T hese remarks directly concerned May es a nd theM A Y E S V

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decisional p rocess f

or retaining and promoting employ ees. May es’s failure to g ive precise dates for the remarks or show

a closer temporal l i n k b e tween the comments and her
t ermination does not defeat her claims. See id. (“W hi l e a f a ctfinder is free to conclude at trial that the p laintif f’ s account is insufficiently detailed to be believable, the district
court must r efrain from making such credibility assessments

on summary judg ment.”); cf. DeHorney v. Bank of Am. Nat’l Trust & S a v

. A ss’n
, 879 F .2d 459, 467–68 (9th Cir. 1 989) (affirming an o rder g ranting summary judg ment on the basis that there was n o “nex us” between the discriminatory remark and plaintiff’s termination where plaintif f f a iled to present evidence that the decisionmaker heard discriminat ory statements or knew plaintiff’s race).

W inCo arg ues that Steen’s comm e n t s cannot constitute direct evidence of discriminatory animus b e c a u se Steen did
not fire May es. B ut the record on this p oint is murky
, at b est. I n an interrog atory answer, W inCo admitted that Steen participated in the termination decision. Steen also testified in the u n employ

ment hearing that she was invo l ved in the decision. Steen further stated i n h er deposition that during the cake-taking investig ation, she was in contact with McCartney
, the employ ee who informed May es that she was being terminated.

Moreove r , the animus of a supervisor can affect an employ m e nt d ecision if the supervisor “influenced o r participated in the decisionmaking process .” DominguezCurry
, 424 F .3d at 1039–40 (emphasis added). Eve n i f the
superv i s o r does not participate in the ultimate termination dec i sion, a “supervisor’s biased report may remain a causal factor if the ind e p e n d ent investig ation takes it into account without determining that the adverse action was, apart f r o mM A Y E S V

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the supervisor’s r e c o mmendation, entirely justified.” Staub v. Proctor Hosp. , 562 U.S. 411, 421 (2011).

W inCo arg ues that there i s i nsufficient evidence that Steen affected its “ independent” investig ation into May es’s conduct for two reasons. F irst, W inCo disputes when Steen lea r n e d that the cake-taking investig ation would lead to May es. B ut Steen acknow l edg ed during the unemploy ment compensation hearing that she contacted loss prevention only after viewing surveillance footag e o f May es taking stale cake. Second, W inCo arg ues that it h ad a g ood-faith belief that May es lied about having permission to take cake and that this insulates the termination decision from any d i s criminatory motive Steen may have had. T his arg ument fails because no

one at W inCo admitted to making the d ecision to fire May es, and it is impossible to know who believed w h at at the time May es was fired. Drawing all reasonable inferences in May es’s favor, we must presume that Steen’s alleg ed bias affected the employ

ment d ecision. See C

huang v. Univ. of Cal. Davis, Bd. of Trs.
, 225 F

. 3d 1115, 1 129 (9th Cir. 2000).

Nor do Steen’s c o m m e n ts fall within the ambit of stray remarks that we have hel d insufficient to establish discrimination. See M

erric k v. F

armers Ins. Grp.
, 892 F .2d 1434, 1438–39 (9th Cir. 1 9 9 0 ) (holding that a hiring

ex e c utive’s comment that he chose “a brig ht, i n t e l lig ent, knowled g eable y oung man” over the p laintiff was merely a stray rema r k that could not, without more, establish ag e discrimination). I f May es’s testimony is believed, reasonable jurors could dec i d e that Steen’s comments, including the alleg ed comment that a man “ would be better” as chair of the safety committee, d e mo n s trate Steen’s overt hostility to having women in leadership roles.M A Y E S V

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W inCo arg ues that we must take into account the c ontex t in which Steen’s alleg e d comments were made and that the

e v i dence here falls short of the evidence that establis h e d discriminatory animus i n cases such as Dominguez-Curry
, 424 F

. 3d a t 1038, and Cordova v. State Farm Insurance Cos.
, 124 F .3d 1145, 1149 (9th C i r

. 1997). I n Dominguez-Curry
, a supervisor alleg edly made sex ist comments such a s “ w omen have no business in cons t r uction,” and we rejected the defendant’s arg ument that these were stray r emarks. 424 F .3d at 1038. Similarly
, in Cordo v a , a supervisor alleg edly made two disparag ing c omments about a Mex icanAmerican employ ee, including calling the employ ee a “dumb Mex ic an

. ” 124 F .3d at 1147–49. W e see no distinction between the a lleg e d big oted remarks in these cases and the alleg ed comments that a man would be better as chair of the safety committee and that Steen did not like “a g irl” running the freig ht crew or the disparag ing insinuations a bout May e s leaving work to pick up her children.

F inally
, contrary to W inCo’s position, the fact that Steen is also a woman does not p reclude a finding of discriminatory animus. Nearly twenty y ears ag o, the Supreme Court held in

no uncertain terms, “I f our precedents leave any doubt on the question, we hold today

that nothing in Title VI I

necessarily bars a claim of d i s c r i m i nation ‘because of

. . . sex ’ merely because the plaintiff and the defendant (or the person charg ed with acting on behalf of the defendant) are of the same sex

. ” Oncale v. Sundowner Offshore S e r vs., Inc.
, 523 U .S. 75, 79 (1998) (alteration in orig inal).

May e s ’s direct evidence alone is sufficient to defeat
summary judg ment, see Dominguez-Curry
, 424 F .3d a t 1039 (“[ W ] e have repeatedly he l d that a sing le discriminatory
comment by a plaintiff’s supervisor or decisionmaker isM A Y E S V

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sufficient to p reclude summary judg ment for the employ er.”), but here, the claim is further b o lstered by indirect evidence. To show pretex t using circumstantial evidence, in contrast to direct e vidence, “a p laintif f m ust put f

orward specific a

nd substantial evidence challe n gi n g the credibility of the employ e r’s motives.” Vasquez
, 3 49 F .3d at 642. May es met this burden for purposes of summary judg ment.

Multiple employ ees testified that it w as a common, accepted practic e

— r ather than an offense punished b y termination—for PI Cs to take cakes to the b reak room. Olson, the o ther PI C for the fr e i gh t crew, stated that he

u n d e rstood that PI Cs c ould take stale cakes from the stales
cart. That W inCo purportedly fir ed May es for following a practice described by some witnesses as “common,” and that another PI C thoug h t was authoriz ed, is specific a nd substantial evidence that W inCo’s proffered ex planation for her termination is not believable. M a y es could not have stolen a cake that she had permission t o t ake. Nor could
manag ement have reasonably thoug ht that Ma y es lied about having permission if they knew that PI Cs were allowed to use stale cakes to motivate employ ees.

Additionally
, May es p resented evidence t h a t W inCo replaced her w ith a less qualified male employ ee. Evidence that a n employ er repl aced a plaintiff with a less qualified
person outside the protected class can b e evidence o f pretex t. Se e Perez v. Curcio
, 841 F .2d 2 55, 258 (9th Cir. 1 988) (reversing a g rant of s u m mary judg ment on an ag e discrimination claim where plaintiff presented evidence thatM A Y E S V

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a y oung er, less qualified person was chosen to replace her). 2 The man who replaced May es had o n l y w o rked for W inCo for about three w eeks, had no supervisory ex perience at W i n C o , an d could only work during limited hours. I n

c o ntrast, May e s received no neg ative performance revi e w s

over the course of twelve y ears with W inCo
, e a r n ed
p r o m otions within the company , a nd held a supervisor y position for approx imately five y ears.

W i n C o a

rg ues that replacing May es with a male employ e e is not evidence of pretex t because Steen play ed no role in hiring May es’s replacem en t

. T he record is to the contrary

. McCartney testified that S teen participated in the interviews for May es’s replacement and had t h e “final say ”

on the new PI C for the freig ht crew. I n her deposition, Steen acknowledg ed that she “weig h[ ed] in” on the decision.

I n sum, circumstantial evidence raises a material dispute of fact reg arding pretex t. This is particularly true when the circumstantial evidence is viewed in co n junction with the powerful direct e v idence of Steen’s discriminatory
comments. I t was error to d ismiss May es’ s discrimination claims.

2 T h e Seco n d Circu i t case cited b y W in Co
, Bren n a n v. Metro po lita n O p e ra Asso c., In c. , 1 9 2 F .3 d 3 1 0 (2 d Cir. 1 9 9 9), is n o t to th e co n trary

. W in Co arg u es th at th is case stan d s f o r th e p ro p o s itio n “ th at ev i den ce th at p lain tif f w as rep laced b y a su b stan t ially y o u

n g er em p lo y ee, w

h i le

su f f icien t to m eet h er p rima fa cie case o f ag e d i sc r i m in atio n , w as in su f f icien t to sh o w

p retex t .” It d oes n o t. T h e Seco n d Circu it h eld o n ly th at th e p lain tif

f h ad n o t p resen ted su f

f icien t ev id en ce o f pretex t f o r h er ag e d iscrim in atio n claim to s urv iv e su m m ary j u d g m en t b ecau se h er

em p l o y er th o u g h t th at th e p l ain tif f an d h er rep l acem en t w ere th e sam e ag e b ased o n th e p lain tif

f ’ s o w n m isrep resen tatio n s. Id

. at 3 1 3, 3 1 7

.M A Y E S V

. W I

N C O H O L D I

N G S 17

B. COBRA Claim

Generally
, COB RA entitles an employ ee with e mploy erprovided health insurance to elect continued coverag e for a d efined p eriod of time after the end of employ ment. S e e 29 U.S.C. § 1161(a). An e mploy ee is not entitled to this benefit if she is terminated for “g ross miscond u ct , ” but the
statute d oes not define “g ross misconduct.” See 2 9 U

. S

. C

. § 1163(2).

As discussed, May e s presented both direct and indirect evidence that the reasons state d for her termination were pretex tual, and we c onclude ther e i s a g enuine d ispute o f material fact reg arding the true reason for her termination. I f W inCo fired May es f

or d i s criminatory reasons, May es may be e ntitled to COB RA benefits. The district court therefore erred i n d i smissing May es’s COB RA claim at summary judg ment.

C. Wage Claim s

W inCo arg ues that the CB A precludes May es’s federal and state wag e claims. The CB A provides t h a t “[ v] acation earned but not taken will not be paid to employ ees terminated for g r oss misconduct under the Company Personnel Policies defining g ross misconduct.” B ecause M a y es presented sufficient evidence to create a g enuine dispute of material fact
reg arding why W inCo fired her, M a y es may be entitled to pay ment for accrued v acation time, and this c laim should not have been dismissed at summary judg ment.M A Y E S V

. W I

N C O H O L D I

N G S 18

CONCLUSION

W e conclude that it c an n o t be determined at summary judg ment whether W inCo’s stated r easons for firing M a y e s

were pretex tual. W e revers e t h e order g ranting summary judg ment on all claims and remand for proceeding s consistent with this opinion.

Appellee shall bear costs on appeal.

REVERSED AND REMANDED.