NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AIMEE GREENE, Plaintiff - Appellant,

v. BUCKEYE VALLEY FIRE DEPARTMENT et al., Defendants - Appellees. No. 13-16102 D.C. No. 2:11-cv-02351-NVW

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding Argued and Submitted July 9, 2015 San Francisco, California Before: GILMAN, ** GRABER, and WATFORD, Circuit Judges. Plaintiff Aimee Greene sued Buckey e Valley Fire Department and its individual officers ("Defendants") under T itle VII of the Civil Rights Act of 1964, alleging gender discrimination and retaliation, and under 42 U.S.C. § 1983, 

# FILED

JUL 30 2015 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
** The Honorable Ronald Lee Gilman, Senior United States Circuit Judge for the Court of Appeals for the Sixth Circuit, sitting by designation.alleging denial of equal protection. The district court granted Defendants’ motion for summary judgment, and Plaintiff appeals. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, Va squez v. County of Los Angeles , 349 F.3d 634, 639 (9th Cir. 2004), we affirm in part, reverse in part, and remand. 1. The district court did not err when it concluded that Plaintiff’s Title VII claims arising out of "discrete acts of discrimination" that occurred before February 3, 2010, are time-barred. See Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 105 (2002) (stating rule). The di strict court properly applied 42 U.S.C. § 2000e-5(e)(1), which sets forth the re levant limitations period. Alleged discriminatory acts that occurred before February 3, 2010, may, however, be used as background evidence to support Plaintiff’s timely claims. Morgan , 536 U.S. at 113. Moreover, Plaintiff may sue directly under § 1983 for alleged discriminatory acts that occurred less than two years be fore she filed her complaint. See Cholla Ready Mix, Inc. v. Civish , 382 F.3d 969, 974 (9th Cir. 2004); Ariz. Rev. Stat. § 12-542 (establishing two-year statute of limitations for personal injury claims in Arizona). 2. The district court erred when it granted Defendants’ motion for summary judgment on Count I, Plaintiff’s claim for gender discrimination in violation of 42

2U.S.C. § 2000e-2(a)(1), except to the ex tent that the court entered summary judgment for Defendants Benbow and Alex ander in their individual capacities. SeeHolly D. v. Cal. Inst. of Tech. , 339 F.3d 1158, 1179 (9th Cir. 2003) (holding that Title VII does not provide for a dama ges claim against supervisors or fellow employees). Plaintiff presented sufficien t evidence to create a genuine dispute of material fact as to whether Defendants’ proffered nondiscriminatory reasons for failing to promote her to full-time firefighter were pretextual. See DominguezCurry v. Nev. Transp. Dep’t , 424 F.3d 1027, 1037 (9th Cir. 2005) (describing the burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973)). She presented evidence, for ex ample, that a number of the captains, battalion chiefs, and crew members at Bu ckeye Valley Fire Department expressed hostility toward Plaintiff because of her sex. She also presented evidence that the prioritized hiring lists used to make full-time-firefighter promotion decisions are generated almost exclusively through i nput from those same captains, battalion chiefs, and crew members. That evidence, taken together, is sufficient to show a "nexus" between the alleged discrimi nation and the subsequent promotion decision. See Vasquez , 349 F.3d at 640 (requiring such a nexus). Plaintiff did not, however, present su fficient evidence to create a genuine dispute of material fact with resp ect to whether Defendants’ proffered

3nondiscriminatory reasons for failing to promote her to acting captain or captain were pretextual. As to acting captain, those decisions were made by the Assistant Chief and Fire Chief, neither of w hom were shown to have shared the discriminatory views of Plaintiff’s other colleagues. Moreover, the decisions were made from an objective skills assessment, not a subjective prioritized hiring list; the men who were selected for acting captain positions scored well in one of the skills assessments. As to captain, thos e decisions were made by the Buckeye Valley Fire Department’s District Board, independent of any alleged discriminatory conduct by individual officers. See id. (concluding that discriminatory remarks by subordinates cannot be imputed to independent and legitimate employment decisions). 3. The district court erred in granting Defendants’ motion for summary judgment on Count IV, retaliation. When evaluating the evidence at the summary judgment stage, "the district court may notdisregard a piece of evidence . . . solely based on its self-serving nature." Nigro v. Sears, Roebuck & Co. , 784 F.3d 495, 497–98 (9th Cir. 2015). Here, the court improperly rejected Plaintiff’s testimony that, like her, other male reserves ha d not completed required training programs, yet they remained on active status whileshe was placed on inactive leave status.

4Plaintiff’s testimony constitutes direct evid ence of pretext sufficient to prevail on Defendants’ motion. 4. As noted above, the record does not show that the Assistant Chief or the Fire Chief shared the discriminatory view s of others in the Department. But the record does permit an inference that th ey knew of the pervasive discriminatory attitudes of others in the departme nt and knowingly failed to prevent discriminatory or retaliatory failures to promote. Because Plaintiff presented sufficient evidence to create genuine disput es of material fact as to Defendants’ intent to discriminate against her under Title VII, she also did so under § 1983. Sischo-Nownejad v. Merced Cmty. Coll. Dist. , 934 F.2d 1104, 1113 (9th Cir. 1991). AFFIRMED in part, REVERSED in part, and REMANDED. Costs on appeal awarded to Plaintiff -Appellant.

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