*1 transcripts in case that occurred after this approxi- maintained corporation and the the to the court ruled on motion equi- district in net assets and mately million $1.7 this appeal the and after judgment in amend Giganews and Livewire ty it sued when However, if filed. even we were to that was court further noted 2011. The district those grant Appellees’ request, transcripts sell or all of its ability to some Perfect 10’s our conclusion that help could the would alter property intellectual clearly err. any judgment against district court did not corporation satisfy undermine these find- Attempting it. to essentially argues that
ings, Giganews CONCLUSION it could not 10’s admission Perfect sum, district conclude the did not we it, judgment against currently pay of dismissing err in much Perfect 10’s history removing with Zada’s combined at the pleadings claim infringement direct 10 and fact that capital Perfect from granting summary nor in stage, did it err a risky under business operates Perfect 10 judgment Giganews in favor of Livew- model, ego have resulted in alter should vicarious, direct, ire on the and contributo- Giganews But for Zada. misses liability infringement further con- ry claims. We point. did not clude that the district court abuse suggests Per- in the record Nothing Appellees awarding its fees discretion undercapitalized that it fect so 10 was supplemental denying Appellees’ fee reasonably expected meet its could not request. Finally, we hold that the district debts, light particularly of Perfect refusing clearly court did err to add satisfy past ability judgments 10’s judgment against Zada to Perfect 10. it, faith. against there is no evidence of bad AFFIRMED. Indeed, not a case a sole this is where company little operated shareholder assets, this a nor is case where no stripped its assets
company was shareholder from adverse
shield its sole finally, although Giganews And
judgments.
argues the district court erred re- value of Perfect 10’sintellec- ferring to the REYNAGA, Plaintiff-Appellant, as- potential tual as evidence property satisfy sets Perfect could with which it, the fact
judgment against remains PRODUCTS, FOREST ROSEBURG has maintained Perfect regularly Defendant-Appellee. consistently its debts enough capital pay No. 14-35028 Therefore, years. regardless almost illiquidity of of Perfect alleged of the some Appeals, United States Court assets, 10’s court did not clear- district Ninth Circuit.
ly that Perfect 10 is not the holding err in Argued July and Submitted ar- corporate Appellees shell” “empty Portland, Oregon dis- gue Accordingly, we affirm the it is. declining order add Zada trict court’s Filed Perfect against judgment judicial take notice of decline to We debtor examination post-judgment
certain *5 Dugan Eugene, (argued),
Marianne G. for Oregon, Plaintiff-Appellant. Dan Montgomery (argued) and W. Jason Clark, Mountainspr- Dole Coalwell Clark P.C., Oregon, Roseburg, Mornarich ing & Defendant-Appellee. for PREGERSON, Before: HARRY OWENS, BEA, B. T. and JOHN CARLOS Judges. Circuit by Judge BEA Dissent OPINION PREGERSON, Judge: Circuit Reynaga Efrain and his son Appellant Reynaga millwrights as Richard worked (“Rose- age Forest 15. He became a States Products United citizen Efrain, his son burg”). According to he and in From 2004 to Efrain worked millwrights of de- only were the Mexican millwright Roseburg, as a at where he Roseburg. Efrain that dur- alleges scent at performed job his well posi- and received ing employment, of his he was the course son, Richard, tive evaluations. Efrain’s subjected disparate and a treatment at Roseburg years. worked for about two hostile work environment because his only Efrain and Richard were the Hispanic origin. race or national millwrights at Roseburg. developed Efrain relation- contentious claims during Efrain the course of Timothy ship millwright, with lead Bra- naugh (“Branaugh”), who ha- his allegedly Roseburg, with he was racially disparaging rassed Efrain with subjected to racially disparaging state- comments. In October and December ments treatment because of verbal com- lodged and written largely His allegations pertain race. plaints Roseburg management, alleg- millwright lead Branaugh, whom Efrain ing workplace. racial harassment very as a “physically large” describes investiga- response, initiated an “aggressive” “bully” who liked to intimi- allegations tion into Efrain’s and ultimate- date people. ly rearranged Branaugh’s work schedule so that he would be on the same shift alleges Branaugh frequently as Efrain. racially derogatory made comments and other, conduct, engaged harassing in-
On Efrain and Richard assigned cluding: to find Branaugh arrived work referred to black notifying Roseburg the same shift. After people “niggers” “rug- Arabs as they would a hostile envi- heads;” September after Efrain ronment, immediately Richard *6 hunting tags year received for the second later, days left A Efrain premises. the few row, said, in “I’m Branaugh a a true be- up and Richard showed to work but re- that we the lieve should close borders [sic] fused their complete to shift because Bra- * you keep to motherf* *ers like from com- naugh at the was also scheduled for work and elk. I ing up killing here our know one supervisor suspended same time. A then tags *er [sic] motherf* who drew back to 18, Efrain and On Richard. (3) back;” in September Branaugh Roseburg terminated Efrain and Richard’s stated, taking “Minorities are over the employment. (4) asked, “Efrain, country;” Branaugh are against Roseburg, alleg- Efrain filed suit (5) all Branaugh, Mexican women fat?” environment, ing hostile work aware that Efrain’s wife Native Ameri- treatment, and retaliation in violation of can, referred to Native women American rights state and civil laws. Richard federal (6) “nasty squaws;” Branaugh as fat belit- party litigation. was not a to the The dis- in front apprentice, tled Efrain of an stat- trict granted Roseburg’s court motion big boy” Efrain ing that was “a with a summary on all Efrain judgment counts. “little, tiny dick” all the help who “needs timely and appealed. part We reverse (7) 14, 2009, he can and on get;” October ruling. affirm in the part district court’s Efrain was an accumula- rebuilding
while FACTUAL BACKGROUND tor, commented, Branaugh “Boy, you’re slow,” remarked other mill- and to the Efrain Mexico and moved to was born “Man, ago just several at he around.” wrights, United States decades dinks later, Bra- days A few Richard and instances of havior. alleges Efrain several and to naugh engaged retaliation in an altercation related disparate treatment (1) 12, 2008, the Roseburg: November seniority performance particular On and drug-sniffing dogs to the police brought job. investigated al- welding Roseburg this Roseburg facility. They the lock to broke cooperated Efrain the investi- tercation. even Efrain Richard’s shared locker and complained management and gation present and offered though Richard was Branaugh. day, Roseburg’s The next anything it. did not find open police The managing personnel Branaugh met with Roseburg not break nefarious inside. did complaints. Efrain and Richard’s discuss millwright’s even lock to locker a white that he “can make They Branaugh told (2) it; after Efrain though dog alerted they “coached people uncomfortable” job, required leg broke he was leadership Branaugh on his skills.” up and the stairs go to work and down December Efrain filed a On injuries similar were al- while others with complaint Roseburg, alleging written (3) home; four stay lowed to and discrimination Bra- harassment millwrights composed one crew while other naugh. response complaint, to the composed alone a sec- Efrain and Richard Vigilant, hired company crew, ond but both crews received relations, in- specializes (4) work; Efrain and Rich- same amount of On vestigate allegations. December harder, assigned the frequently ard were 2009, Vigilant interviewed Efrain. dirtier, as dangerous jobs, more such had made racist stated room; cleaning hydraulic statements, harassing had Efrain for been file when reports repairs had to written time,” long “a and that Efrain did not to, not and he millwrights did have Branaugh. Subsequent- to work with want he length about the of time was harassed rearranged Branaugh’s ly, perform repairs while were took others so schedule that he would be on harassed; Roseburg de- similarly account, same shift Efrain. but company nied Efrain a email workers; mill after gave them to other Vigilant December contact- On about the complaint Efrain filed a written follow-up ed Efrain to conduct a interview. environment, orders hostile work partici- only stated that he would no made to Efrain longer available attorney present, if he had pate Richard, they had to consult the so *7 Roseburg’s policy attorneys did not allow do; figure job out work board what plant-level investiga- to be involved with com- Efrain filed a written after that he subsequently tions. claims Roseburg put millwrights back plaint, that he was Roseburg willing informed (from part-time), but did full-time work interviewed a time an be second without not do so Efrain and Richard. attorney, up. but never followed 2009, hostile alleged October 4, 2010, January Branaugh in the On left work environment worsened. On October printed containing room a email an 2009, break 14, Branaugh questioned after article that claimed President ethic, they Obama engaged work alien “our illegal and that borders are over verbal confrontation who needed it, like sieves.” When Efrain read he was piece machinery. on particular hostility Terry “very concerned about racial day, spoke The next Richard with Turner, days A la- superin- and harassment at work.” few Roseburg’s maintenance 2010, tendent, ter, January 9, Branaugh’s harassing be- on and Rich- shift, ard arrived at work for their and the investigation revealed “no evidence of upon discovering Branaugh that was also a pervasive severe or hostile work envi- site, they immediately premises. left the ronment,” but did reveal' “personnel some Richard notified via email about issues and [Roseburg] to ad- intended] Branaugh’s presence on the same shift and dress those issues ... but [Efrain was] stated, “We will not work in a hostile work _re- unwilling to meet ... despite report environment. We will to our shift on peated phone calls attempts to com- [ujnless Jan[.], 13, Wednesday, 2010 ... municate.” we hear otherwise.” 13, January 2010, On Efrain and Rich- PROCEDURAL BACKGROUND up ard showed to work and asked were July On Efrain filed a First Johnson, meet Dan with Roseburg’s Hu- Amended Complaint that alleged three man Resources and Safety Supervisor, to causes of action for discrimination under discuss their walking job off the on Janu- § 42 U.S.C. 1981 and Title ofVII the Civil ary 9. Johnson told Efrain and Richard Rights 1964, Act of § 42 U.S.C. 2000e “Branaugh would be off-shift ... as (“Title VH”): (1) environment; hostile work possible, much as there were disparate treatment; and retaliation. days some where Rey- and the Efrain also alleged a fourth cause of action nagas would be on the plant site at the for relief Oregon under state dispa- law for same time.” Johnson said that (O.R.S. 659A.030(l)(a)) § rate treatment had been stay away instructed to from (O.R.S. and hostile work environment Richard, Efrain and and to have “no con- esoAfisoaKb)).1 § tact with them necessity unless work emergency arose.” Johnson directed Roseburg moved for summary judg- Efrain and Richard to do the same and ment. The granted district court summary they asked if would complete their shift judgment in favor of Roseburg on all day with Branaugh on the premises. timely claims. Efrain appealed. Efrain and responded Richard they would not work Branaugh, so Johnson AND JURISDICTION STANDARD suspended “pending them the conclusion of OF REVIEW investigation.” day, That same Bra- naugh revved his engine at Efrain and jurisdiction We have under 28 they Richard as waiting park- in the 1291, § U.S.C. and we review de novo the ing lot for their shift to begin. district court’s grant summary judg ment. See Dominguez-Curry v. Nev. January
On Efrain received a Transp. Dep’t, explaining letter 2005). “Viewing walking job terminated “for off the light most nonmoving par favorable to the January 2010, and refusing to work on ty, we must determine whether there date, 2010.” are On the same *8 any genuine disputes Efrain received a of material fact and explaining second letter that correctly he exhibited a lack whether the district court coopera- applied of “full tion” investigation with the and that relevant substantive law.” An Id. issue Roseburg was “forced to conclude in-' of fact genuine is “if the evidence is [its] such vestigation absent a follow up closing jury and that a reasonable could return a ver interview[.]” The letter also stated nonmoving that dict for the party.” Villiarimo allege 659A.030(l)(f). 1. Efrain did not a state law claim for retaliation under O.R.S. 686 dispute apply with Air, Inc., court in a Title VII 281 F.3d
v. Aloha Island (9th 2002) § action.” Manatt v. equal in a 1981 (quoting v. force Anderson 1061 Cir. (9th Am., NA, F.3d 797 Inc., 242, 248, Bank 339 477 U.S. 106 Lobby, Liberty of 2003). (1986)). any Accordingly, discussion Cir. 202 S.Ct. 91 L.Ed.2d Efrain’s Title VII claims regarding herein DISCUSSION § applies corresponding claims. the district court Efrain contends summary be- judgment granting erred in Rights Title of Civil Under VII disputes of mate- genuine cause are there for an employer Act of it is unlawful of his claims. As rial fact for each an individual with against to discriminate claim, work environment Efrain’s hostile terms, compensation, condi respect fact a reasonable trier of
we hold that tions, privileges employment or of because (1) Branaugh’s could conduct conclude of the race. U.S.C. 2000e- individual’s pervasive or to cre- sufficiently severe 2(a)(1). prohibition against includes a This (2) environment, and ate a work hostile the creation of a hostile environment. Branaugh’s miscon- Roseburg knew about Inc., Sys., See Harris v. 510 U.S. Forklift to take effective remedial duct and failed 367, 126 L.Ed.2d S.Ct. disparate Efrain’s treatment action. As to (1993) (‘When workplace permeated is claim, that Efrain has demonstrat- we hold intimidation, ridicule, discriminatory facie necessary prima case to sur- ed insult, sufficiently or and is severe judgment on summary vive based pervasive to alter the conditions of the terminating employ- Efrain’s and create an victim’s abusive (2) breaking into locker. ment Efrain’s environment, working Title isVII violat there genuine hold that is a We further (internal ed.”) marks cita quotation dispute fact as to discrimi- omitted); Graphic v. tions Woods those natory regarding challenged intent (9th Comm’ns, 1195, 1200 925 F.2d Cir. retaliatory Finally, as to actions. 1991) (“Courts long recognized that a have claim, hold we that a reason- termination hostility racial workplace per in which able fact could conclude that Rose- trier of form of vasive constitutes a discrimina burg’s terminating reason for proffered tion.”). pretextual. Efrain was A. Hostile Severe or Pervasive Work reverse and
Accordingly, we remand Environment a trial Efrain’s claims of hostile work on environment, treatment, and re- To a hostile work succeed on envi affirm the district court’s taliation. We race, the plaintiff ronment claim based grant summary judgment on certain “(1) he must was sub demonstrate: discussed below. issues jected physical to verbal or conduct of nature; ... that the conduct racial I. Environment Hostile Work unwelcome; that the conduct was sufficiently pervasive alter the argues first the district severe plaintiffs employment conditions granting summary judg- court erred create work environment.” ment on his work envi- an abusive hostile Angeles, Vasquez Cty. “First Claim for Re- Los ronment claim. This 2003). It is undisputed counts Title lief’ is divided into two under first recog- § that Efrain has met his burden VII and 42 U.S.C. 1981. We have *9 Therefore, to sum- “legal principles a two elements. survive guiding nized that the
687 mary judgment, Efrain must show the ex- the to plaintiff be relevant her to his or genuine dispute of a istence factual as to hostile work environment claim. McGinest (1) the workplace whether conditions v. Corp., 1103, GTE Serv. 360 F.3d 1117 “sufficiently (9th to pervasive 2004). severe or alter Cir. conditions of and the create plaintiff The must show the (2) working an abusive environment” and work environment was subjectively both Roseburg, once apprised
whether
Bra-
objectively
Nichols,
hostile.
F.3d
256
behavior,
naugh’s
adequate
failed to take
at 871-72. It
is undisputed that Efrain
action,
and disciplinary
remedial
such that
perceived
hostile,
his workplace to be
as
Roseburg may
vicariously
be liable
or
by
repeated
evidenced
complaints
through negligence.
v.
See Steiner
Show-
Branaugh.
objective
As to
inqui
the
Co.,
1459,
Operating
boat
25 F.3d
1462-63
ry, we
whether
assess
the
workplace
(9th
1994).
Cir.
the perspective
hostile from
of a reason
In assessing
a work envi
whether
person belonging
able
plaintiffs
the
ra
hostile,
is sufficiently
ronment
the court
(here,
group
cial or ethnic
Hispanic/Mexi
the “frequency
examines
of the discrimina
can). McGinest,
1. Vicarious seriousness of the offense.” Ellison v. (9th Brady, 1991) 924 F.2d Cir. employer vicariously An is liable (citation omitted) (“Title VTI requires for a by hostile work environment created more than a mere request to refrain from supervisor. Univ., a Vance v. State Ball conduct.”). — discriminatory -, 2434, 2439, U.S. 133 S.Ct. (2013). A supervisor per
L.Ed.2d 565 is a record that establishes a rea The son who take tangible employment can of sonable trier fact find could that Rose- against employee, actions an including ef burg knew about Branaugh’s misconduct fecting “significant change employment and responded On status, inadequately. firing, October hiring, failing such as 14, 2009, Efrain had a promote, reassignment verbal confrontation significantly with with Branaugh, day, different a and the responsibilities, or decision next Richard causing significant spoke change Terry Turner, benefits.” with Roseburg’s (citation omitted). Id. at 2443 supervisor, maintenance Branaugh’s about harassing Then, conduct. on October court, At the district Efrain con and Branaugh engaged Richard in an Branaugh ceded that a supervisor, was not altercation seniority related to per and argues but appeal. otherwise on As a lead job. formance of welding Efrain cooper millwright, Branaugh authority had the ated in investigation of that direct of millwrights the work incident complained management tell perform them which tasks to that day. about Branaugh. Beyond this, provide Efrain does any not evidence that supervisory had The parties dispute the specific nature authority significant change to effect in the complaints, Efrain’s as well the man- employees. status of other In ner in Roseburg which conducted its inves- stead, the record shows lead mill tigation complaints. into those For exam- wrights did have hiring, not ple, Shop Union Steward Scott Albertus firing, Thus, or disciplinary authority. testified did not make a verbal genuine dispute has not raised a complaint Efrain, about a “racial issue.” issue, material fact on this hand, the other testified that he told Al- cannot be liable Branaugh’s held for con Roseburg management bertus and duct theory under a of vicarious liability. Branaugh him in a harassing racist manner. Negligence Additionally, Supervisor Maintenance grounds the absence of for im he, Terry Albertus, Turner testified that posing liability, employer vicarious and Master Mechanic Dick met Westbrook liable for a hostile environment cre October ated if plaintiffs co-worker the em response complaint. to Efrain’s verbal ployer “knew, known, or should have However, Efrain testified that Albertus prompt harassment and failed to take admitted to him that he not attend did effective remedial action.” E.E.O.C. v. Inc., Servs., meeting. Efrain also claims that Albertus Prospect Airport 621 F.3d (9th 2010). told him “repri- Cir. Westbrook had indeed Remedial action Branaugh, manded” must include some form of that Albertus was disciplinary measures, any Yamaguchi Dep’t skeptical reprimand, real remark- v. U.S. Force, ing, probably Air I know—they “How do sat 1997), together which must be “proportionate[ and drank Coca Cola.” ] measures enough. The remedial must further not provides Nichols, 256 F.3d at also be effective. See respond appropriately
Roseburg did (“When employer undertakes complaints. Master Me- 875-76 verbal remedy does remedy, deposition testified at no or where chanic Westbrook any [Branaugh] and deter fu- g[a]ve end the current harassment that he “[n]ever harassment, and that disciplinary liability action” ture attaches both kind of formal *12 any consisted with and future past his conversations the harassment as, you harassment.”). “I learn hope of such platitudes, again.” Don’t do it your mistakes. from of fact genuine dispute There is a fact, in the reveals record the evidence response was effec- Roseburg’s whether complaint Efrain’s in response in all, After Efrain declares Bra- tive. 2009, Roseburg’s managing per- October harass him even after naugh continued to Branaugh on his simply “coached sonnel meeting management with October. And and told him he “can leadership skills” it though Roseburg contends that even uncomfortable.” people make Branaugh from Efrain tried to separate dispute, Roseburg point another As Richard, assigned still and the men were that Efrain interfered with contends 9, 2010, January and to the same shift on into his written investigation December enough proximity for Bra- close refusing to be a by interviewed complaint Efrain naugh engine and rev his by walking job. off the second time Richard on Roseburg’s that he told responds genuine Because has established Dan representative, human resources disputes fact as to whether Johnson, participate he would in a remedy a racially fostered failed to attorney, an but interview without second environment, reverse hostile work we up. followed Roseburg never summary judg- grant district court’s disputes why underscore this case These ment on hostile work environment Efrain’s presents questions of material fact claim. appro- that are
credibility determinations Disparate II. Treatment only priate jury. for a Not meeting argu- with Branaugh mid-October facing liability In addition to to address ably insufficient the seriousness creating environment, by a hostile work an allegations Richard’s of dis- Efrain and Title VII and employer is liable under behavior, harassing a rea- criminatory and employee § an subjects 1981 when it fact could that it trier of also find sonable prima disparate To show facie treatment. man- meeting ineffective. After treatment, plaintiff of disparate case agement, Branaugh continued to harass “give[s] must offer rise to an Efrain, Efrain to prompting file written inference of unlawful discrimination.” Sis early December 2009. It was complaint Dist., MercedCmty. Coll. cho-Nownejad v. indepen- hired an only then 1991) (9th 1104, (quot 1110 934 Cir. company (Vigilant) investigate dent Burdine, of Cmty. v. ing Dep’t Tex. Affairs eventually to Rose- allegations, which led 253, 1089, 450 U.S. 101 S.Ct. 67 to schedule on a burg’s decision (1981)). way to L.Ed.2d 207 One establish Efrain. shift from separate by satisfy of discrimination is inference prima from McDon Roseburg may ing indicates that facie elements The record Green, 792, Douglas Corp. nell U.S. investigating promptly have acted (1973): 1817, L.Ed.2d 668 93 S.Ct. complaints, prompt action (1) plaintiff belongs protected to a is one that can only be resolved through a class, performing he was according to searching inquiry that is appro most —one employer’s legitimate expectations, priately factfinder, conducted upon action, he suffered an employment adverse a full record.” Schnidrig v. Columbia similarly situated employees were Mach., Inc., (9th 80 F.3d Cir. treated favorably, more or other 1996) (internal circum- quotation marks and cita stances surrounding the adverse employ- omitted). tion give ment action rise to an inference of bases his treat
discrimination. Hawn
Mgmt.,
v. Exec. Jet
ment claim on a number of alleged instanc
Inc.,
(9th
2010);
615 F.3d
Cir.
es of discriminatory
actions,
Wesson, Inc.,
Godwin v. Hunt
150 F.3d
being
foremost
his termination. Efrain
1998)
(citing McDon-
alleges that his employment was terminat
Douglas,
nell
As
pretext.
of
fact as to
case,
five instances
alleges
Efrain
facie
(1)
action:
retaliatory
employment
adverse
Supreme
Douglas,
the
McDonnell
2009,
and Richard
Efrain
In November
pretext
of
explained that evidence
Court
powerhouse
the
required to work at
were
804-05,
many
at
can take
forms.
U.S.
a bet-
millwrights
white
worked
while five
For
the manner in
example,
93 S.Ct.
(2)
30, 2009, Rose-
job;
on December
ter
by his em-
plaintiff
the
treated
which
part-
from
millwrights
burg converted
may be
during
his
rele-
ployer
so for
full-time but did not do
time to
Addition-
showing
pretext.
to a
of
Id.
vant
Richard;
January
fact
outside the
ally,
persons
the
no
available
longer
made
work orders
treated
protected class were
bet-
plaintiffs
Richard,
they had
Efrain and
so
comparable
of
seriousness
ter for offenses
what
figure
out
consult the work board
Id.
help
pretext.
could also
demonstrate
do;
job
and four
also ex-
The Court
the same shift. Efrain Reynaga appeals as the district to how he was grant summary judgment court’s employment, treated in fa- during his the timing vor Roseburg of defendant being of his Forest termination one month Prod- after ucts (“Roseburg”) his for his hostile complaint, written and the work disparity environment, treatment, punishment disparate Efrain and and re- between taliation claims in violation of 42 are sufficient to genuine establish a U.S.C. dis- (“Title § VII”), § 2000e pute of fact U.S.C. as to whether prof- Oregon state The leading fered reason law. events terminating for Efrain’s em- to this lawsuit occurred when ployment Therefore, Appellant pretextual. (of descent) Reynaga Mexican district worked granting court erred summary a millwright for judgment in between 2004 favor of on Efrain’s during time claim which he claims to retaliatory termination. subject racially have been disparaging IY. State Law Claims statements disparate treatment be- cause of his race lead millwright Tim-
This
court has held
the substantive
othy Branaugh.
I
panel
concur
analysis
§
for Title VII and
1981 claims
majority’s opinion reversing the district
applies
to discrimination claims under
grant
summary
court’s
judgment
for
(b).
659A.030(l)(a),
§§
Dawson,
O.R.S.
defendant
Reynaga’s retaliatory
termi-
Therefore, pursuant
F.3d at 934-35.
to the
However,
nation claim.
because Roseburg
II,
analysis in
supra,
Parts I and
the dis-
took prompt and effective action to recti-
trict court
granting Roseburg’s
erred in
fy the hostile
experi-
work environment
summary judgment
motion for
on Efrain’s
by Reynaga
Rey-
enced
and terminated
state law claims.
naga only
repeatedly
after he
refused to
shifts,
assigned
the district
CONCLUSION
court concluded
properly
his hostile
reasons,
For
foregoing
we RE-
work environment and
treat-
grant
VERSE the district court’s
of Rose-
ment
claims should fail as matter of
burg’s
summary
motion
judgment
law.
REMAND
proceedings
for further
on the
*17
(1)
following
hostile work
claims:
environ-
I.
ment, including employer liability through
(2)
negligence;
disparate
Reynaga
treatment
of proving
with
has the burden
that
regard
breaking
Branaugh’s
“sufficiently
to the
of Efrain’s lock and
conduct was
se-
employment;
pervasive
termination
Efrain’s
vere or
of
to alter
conditions of
(3)
regard
retaliation
...
Roseburg’s
with
and create an abu-
[his]
employment;
termination
Vasquez Cnty.
of
and sive work environment.”
v.
(9th
634,
Vigilant’s investigation,
of
Rose-
F.3d
Cir.
the course
Angeles,
Los
of
2003).
Furthermore, Reynaga
burg
Branaugh’s
altered
schedule
must estab
Branaugh’s
Reynaga
apart
and
as
keep
Branaugh
is liable for
Roseburg
lish that
conduct,
vicariously
possible.
on much as
either
or based
Corp.,
v.
negligence.
GTE Serv.
McGinest
Roseburg’s
only
not
intervention was
2004).
(9th
1103, 1119
Cir.
Reynaga
does
prompt,
also effective.
identify
derogatory
statement
single
that Bra-
not
The district court concluded
by
after
com-
Branaugh
Vigilant
suffi- made
racist
were not
naugh’s
statements
its
fact that
investigation.1
menced
The
to alter the conditions
ciently severe so as
Reynaga
at the
Roseburg scheduled
to be
The court also
Reynaga’s employment.
(1)
facility
day Branaugh
as
alone
held,
Roseburg was
on
same
alternatively, that
con-
juror
con-
not allow a reasonable
vicariously
Branaugh’s
would
liable
Roseburg’s
that
intervention was not
Branaugh
supervi-
was not a
clude
duct because
effective,
(2)
Roseburg
sor,
Roseburg
negli-
such that
could be held
and that
was not
effectively
negligent.
duty
as
was
promptly
it
and
liable
gent because
eliminating Reyna-
care in
agree
I
take reasonable
Branaugh’s
remedied
misconduct.
hostile,
Branaugh’s
racist
panel majority
Roseburg
ga’s exposure to
with the
statements,
and
Branaugh
con-
not ensure
Branaugh’s
cannot be held liable for
in
theory
liability. Reynaga
working
were never
the same
duct under
of vicarious
Thus,
facility.
Reynaga’s
mis-
as far as
assuming
Branaugh’s
But even
shows,
racist
sufficiently
Branaugh’s
so as to
statements
conduct
severe
by
employer
the time that the
acted
Reynaga’s employment,
ceased
alter
terms
Reynaga’s complaint. Reynaga
has
Rose-
cannot
Reynaga
not established that
on
fact
effectively
failed
to raise a triable issue of
as to whether
burg
promptly
workplace
following
hostile
Rose-
remedy Branaugh’s misconduct.
such,
burg’s
Reynaga’s
intervention. As
remedy
Roseburg
prompt action to
took
workplace
hostile
claim should fail.
son
alleged
Reynaga’s
misconduct.
employee
spoke
Roseburg
with another
II.
Branaugh’s
behavior
October
2009,
Roseburg
to conduct an
To establish that he suffered
which led
investigation
Reynaga participat-
in which
treatment
violation
Title VII
1981,
“may
§
Appellant
complaint
Reynaga
But
a written
...
[use]
ed.
filed
framework,
alter-
specifically
Douglas
identified McDonnell
natively, may
cir-
Branaugh
simply produce
and referred to “acts of discrim-
direct or
that a
demonstrating
ination” and a “hostile work environment”
cumstantial evidence
discriminatory
only
likely
2009.
hired
more
than not
December
reason
receiving Rey-
Metoyer
within
week of
motivated” the defendant.
Vigilant
one
Chassman,
naga’s
complaint,
represen-
written
504 F.3d
2007).
Reynaga
Douglas
from
Under
Vigilant
tative
interviewed
McDonnell
“(1)
framework,
Reynaga
2009.
inter-
must show that:
Vigilant
on December
class,
During
belongs
protected
to a
employees
[he]
viewed
well.
[he]
sieves;”
Reynaga
only
by Bra-
Jan.
identified
two acts
engine
Reynaga’s
naugh occurring after
2009:
revved his automobile's
December
sufficiently
presence.
acts are
Jan.
left an email in the
These two
Reynaga’s
purporting
quote
Lee
so as
alter the
breakroom
a book
severe
terms
employment. Vasquez,
"our
are like
697 according Accordingly, to framework. performing employ- [his] no reasonable legitimate expectations, suf- jury [he] er’s could Roseburg subjected find that action, fered adverse and Reynaga racially disparate to treatment employees qualifications other when it refusing fired him for to on to own were treated more [his] similar January 13. The district court should thus Wesson, favorably.” Inc., Godwin v. Hunt be affirmed on point.2 this 1998) (citing I respectfully dissent. Green, Douglas Corp. v. McDonnell 36 L.Ed.2d U.S. S.Ct. (1973)). Roseburg,
According Reynaga it fired January 18, Reynaga
on 2010 because job January off the on 9 and re-
walked
fused work his scheduled shift on Janu- It
ary undisputed Reynaga 13. job January off walked 9 and re- SANDOVAL, Leonel AKA Lione January fused work the 13 shift. These Sandoval, Petitioner, legitimate, non-discriminatory are reasons panel Reynaga. majority to terminate The Sally Q. YATES,* Acting requiring Attorney
asserts that Roseburg Reynaga January General, Respondent. to work 13 at same time as decision not to No. 13-71784 discipline Branaugh immediately offered disparate potential evidence of treatment. Appeals, United States Court of However, above, as Reynaga mentioned Circuit. Ninth right not have a insist that did Rose- Argued and Submitted November burg fire Branaugh or never schedule Bra- 8, 2016, Portland, Oregon naugh at the same that Reynaga time hostile, working. Branaugh’s racist state- Filed Vigilant began ments ceased after investi-
gating Branaugh in 2009. December That
Roseburg did discipline Branaugh be- Vigilant completed investigation
fore its job Reynaga similarly walked off dispa-
cannot be construed as evidence of reasons, Reyna-
rate treatment. these For did not
ga provide direct circumstantial suggest discriminatory moti- He
vation termination. also failed to
offer evidence that workers had they terminated
been when walked off the
job so as to burden satisfy shifting * Q. agree majority Sally I panel Reyna- predeces- with the Yates for her is substituted sor, ga did raise a triable of material Acting Attorney issue fact as Lynch, Loretta Gen- E. cutting States, treatment for the lock pursuant eral R. United to Fed. McDonnell-Douglas incident under the frame- 42(c)(2). App. P. work.