*1
919
Miller,
means that the state cannot be held liable
F.2d at 1349-51
813
Act. See
man
267-68,
Blank,
Fisher,
106
entering
475
into the MSA. See
216
U.S.
(citing
1045). Otherwise,
hybrid
re
718,
straint discussed, the already we have invalid. As D. Conclusion delegation per se no such involves MSA show that the MSA Sanders has failed to ability to fix as the such illegal power per illegal statutes are se implementing must supra. Part III.A We See prices. Act. also has under the Sherman Sanders cannot be that the MSA therefore conclude of the defendants Accord failed to show hybrid as a restraint.10 classified Cir Act or to follow the Third under either the Sherman decline are liable ingly, we the state is hold that antitrust law. Sanders cuit and instead under California immunity in this case.11 Parker a claim enti- entitled to has failed to state therefore relief, the district court tling him to law claims C. State his lawsuit. properly dismissed claims under Cali brought also Sanders AFFIRMED. courts antitrust law. California fornia im Noerr-Pennington held that the have private applies protect
munity doctrine from state- government
petitioners liability exactly the same
law antitrust anti them from federal
way protects as it Kirwan, 39 liability. See Blank v.
trust 58, 703 P.2d Cal.Rptr.
Cal.3d (1985). Noerr-Pennington Since
63-65 the tobacco defendants
immunity shields liability, it also shields Act
from Sherman liability. antitrust See
them from state
PTI, F.Supp.2d at 1196. liability the State of California’s As for METOYER, Plaintiff- Patricia Heisser laws, court cor- the district
under its own counter-defendant-Appellant, legislature rectly noted that California own statutes hardly have violated its could Sanders, statute. See by passing another CHASSMAN, individual; Leonard Furthermore, at 1104-05. F.Supp.2d politi- courts have held
the California
individual,
McGuire, an
are
John
of the State of California
cal divisions
Defendants-Appellees,
Act, which
Cartwright
to the
subject
Tritent,
Circuit,
declined to hold
preemption, the Sixth Circuit
reached
The Sixth
Kentucky
MSA scheme
version of the
Kentucky
that the
ver-
about the
similar conclusion
hybrid
Id.
was a
restraint.
Circuit
The Sixth
of the MSA scheme.
sion
Co.,
Williams
Rice v. Norman
held that the
they,
argue that
73 L.Ed.2d
tobacco defendants
U.S.
102 S.Ct.
11. The
too,
immunity. We
(1982),
pre-
Parker
analysis "must
are entitled to
preemption
issue,
we
al-
since
have
hybrid-restraint
reach this
analysis
need not
cede the
under
immunity
Tritent,
they are entitled to
ready
Since the
held
theory.”
Defen
aimant-Appellee.
No. 04-56179. Appeals,
United States Court of
Ninth Circuit. June
Argued and Submitted Sept.
Filed *4 NELSON; by Judge D.W.
Opinion and Partial Dissent Partial Concurrence BEA. by Judge NELSON, Judge: Senior Circuit D.W. Actors Guild May, 2001 the Screen (“the Guild”) Dr. Patricia Heisser fired Teukolsky, Lauren Marco Simons African Ameri- (“Metoyer”), an Pasadena, CA, Inc., Stormer, Hadsell & PricewaterhouseCoopers can, after appellant. for the (“PwC”) Metoyer authorized concluded Stormer, Richardson, & Hadsell Anne $30,000 of funds excess payment Pasadena, CA, appellant. Inc., friends, business available for Guild use production and her husband’s partners, Hicks, Beverly Hicks, & Hicks Rick by bringing Metoyer responded company. Hills, CA, appellant. Guild, including against the multiple claims Hicks, Beverly Hicks, & Hicks Eugenia and retaliation race discrimination federal Hills, CA, appellant. for the *5 1981 and state U.S.C. claims O’Melveny & Hagen, B. Catherine under the Cali- claims law discrimination Beach, CA, LLP, for the Newport Myers, Housing Act Employment fornia Fair appellees. (“FEHA”). granted The district court in favor of the Guild summary judgment O’Melveny Myers, & Amdursky, Eric J. part and find all claims. We reverse Beach, CA, appel- on LLP, for Newport a triable issue of Metoyer that has raised lees. the federal and state fact on all but one of O’Melveny & Spigarelli, Renee M. retaliation claims.1 race discrimination Beach, CA, for the LLP, Newport Myers, appellees. AND PROCEDURAL I. FACTUAL Myers, O’Melveny & Rutledge, Ryan W. BACKGROUND2 Beach, CA, appel-
LLP, Newport lees. Hiring Process A. for em- Metoyer applied
In March posi- listing with the Guild ployment Action “Affirmative as tion she desired time, did not At that the Guild Director.” po- Director” Action an “Affirmative have sition; “Executive Administra- it had two NELSON, B. JOHNNIE Before: D.W. positions, Affirmative one BEA, Action” tor of RAWLINSON, T. and CARLOS Hollywood.3 City and one York New Judges. Circuit facts, all we draw disposition, we In our statement separate memorandum 1.In Metoyer. (1) in favor of inferences plain- reasonable See, denial of district court's affirm the Un Cent. Credit reconsideration, e.g., v. Electra Cornwell deni- tiff's motion for Cir.2006). ion, n. 1 439 F.3d We costs. plaintiff's motion to re-tax al of argument that dispose of defendant's also and, the na- considered Hollywood” was was void 3. "SAG employment contract plaintiff’s all of the national therefore, headquarters and tional law cannot sustain a matter of in this office. positions were director claims. plaintiff's 42 U.S.C. 1981 Metoyer by Kathryn Administrator, was contacted position Executive Affir- (“Nirschl”), Action, Nirschl the Guild’s Executive mative with all the terms and con- Administrator of Human Resources and ditions as stated in letter dated [Nirschl’s] invited to interview. Nirschl informed April 1998.” Metoyer although that posi- the title of the Throughout Guild, her tenure at the administrator,” tion was that of “executive nameplate Metoyer’s read, door “Patri- she would fact be the “director of affir- cia Heisser-Metoyer National Executive mative Metoyer action.” Nirschl assured Director Affirmative Action” many salary up would increase her co-workers and SAG members re- $89,000 once the position changed to that ferred to her as the national director. of “director.” hired, Soon after Linda
Metoyer also interviewed with John Shick, C. the new National Director of Hu- Barbadian, the national director of human man replaced Barbadian, Resources who time, at resources who told her that again planned informed her that the Guild department because the affirmative action appoint 30 directors and that her posi- SAG, was in disarray such the Guild tion of national director of affirmative ac- needed a national director and that her tion would be one of them. Within a few changed title would be of “di- months, all planned appointments to Finally, rector.” during the interview with national positions director granted were Nasur, president Richard of the national except Metoyer’s. SAG, board of directors of he referred to August, Metoyer petitioned position applying Guild’s Senior Staff to create a National *6 as that of “director.” Director of position. Affirmative Action 27, 1998, April On after several rounds (“McGuire”), John McGuire then the interviews, Nirschl Metoyer sent a let- Guild’s Acting Executive National Di- ter stating: rector, request denied her “because the
It a pleasure to confirm an offer of Affirmative department Action was not employment you on behalf of the and, structured to nationally function con- Screen Actors Guild. The Guild is a sequently, there was no need for a national dynamic organization providing new director.” Schick explained Metoyer challenges and increasing responsibility. that SAG had never person had a of color
Your current employment offer of is higher than position currently she held position for the of Executive Administra- and that very would be difficult for tor, Affirmative Action with an annual senior staff to accept ways. new Specifi- $65,000 salary of payable weekly on a cally, stated, she people “There are no assignment basis. This begin will on staff, color on senior very unlikely and it’s 26,1998. Tuesday, May employee As an that there will be.” Guild, of the you Screen Actors are enti- Relaying B. Role in
tled to an extensive Dis- package benefits Complaints by crimination health, dental, vision, SAG including pen- Employees union, sion plan, credit many and other valuable benefits. Your eligibility Almost immediately Metoyer after these benefits will commence August hired, began she approached by be mi- nority employees within the Guild with In a letter sent to Nirschl on May complaints of racial discrimination. Sever- Metoyer confirmed her “acceptance minority al employees complained to Me- staff, affirmatively, ex- responded includ- ken” and he senior that the Guild’s toyer Chassman, that McGuire did not like her Metoyer’s plaining Schick, Leonard ing attempt- outspoken Hol- she was too and the Guild’s because supervisor immediate McGuire, Director, implement poli- affirmative action ing lywood Executive were management”), cies. (collectively “senior mak- race in the basis of discriminating on Metoyer’s budget and In SAG cut pay. assigning work
ing promotions, an increase in racial discrimina- there was these com- assiduously related by employees which complaints tion SAG and others management senior plaints to anony- circulation of an culminated at the Guild. her time throughout minority em- letter written SAG mous Metoyer of ployees. accused Chassman responded and Chassman Schick “fomenting” discontent unrest com- blatantly racist complaints with these regarding racial amongst employees SAG complaints response ments. encouraging them to discrimination and in low- being kept were African Americans with their race discrimina- keeping come forward “I’m jobs, Shick stated: paying eye complaints. tion keep an I want to them there because party like to people them because black Metoyer’s Findings Irregularities C. Chass- do their work.” and eat and don’t in IACF Grants “They ought to be was: response man’s meeting job.” In another they have ra- glad relaying complaints of In addition to put in 1998 which discrimination, sometime Metoyer discussed cial minority employees, complaints of guild forth concerns of management senior people “All of these responded, irregularities Chassman and herself about members that some- malingerers. Is lazy are grants. part, In relevant in several IACF Americans with African thing special states: Metoyer’s declaration they the time and to socialize all they have I hired and the time From happy be happy? They should are never regularly I my employment, throughout employees job.” Many of the to have this allocation of funds on questioned the *7 they were retaliated Metoyer that told that are mandated grants several brought complaints their after she against components and Affirmative Action have management. attention of senior to the continuously com- in them. I projects irregu- about to SAG senior staff plained would Metoyer that she Schick warned funds grant larities certain IACF she organization far in the because go Ward, (Brakefield, projects) and Jensen man- senior outspoken SAG was too following for the reasons: people of color not tolerate agement did Brake- Ms. A. Shawna way did. Schick com- talking she back Brakefield: and her travel for staff paid field was for mented, than other black talk more “You funds and was out of IACF are like— husband The rest of them people here. given who was contractor They independent something. or they’re like a tribe rent-free and at the Guild talk. suite of offices they don’t together, around hang paid was also telephones. She much.” Me- access You talk too You’re unusual. indepen- as an $85,000 salary while job be- about her toyer concerned became competi- entered producer management [she] dent actions of senior cause of the pro- personal her at festivals with employees who tions minority against other representing jects while she asked complaints. brought interest). (obvious She conflict of Guild outspo- “too whether she was Chassman 501(c)(3) paid organizations, also for husband’s travel out of indepen- these funds. The Board of Directors complained dent contractors. Members complained pro- that she never included me, reported complaints I their group tected members in the festivals John McGuire and Leonard Chassman. ... for outreach her husband and Nothing was ever done. her staff. She was never audited in grants While affirmative action IACF spite complaints. of numerous She re- very scrutiny, were under close these $1,000,000 ceived excess of without grants years other went without being audited and did not account for scrutiny accountability or whatsoever. spending money appropriate- Brakefield, Ward and Jensen were re- ly. spent money print She also IACF ceiving large grants year from IACF pictures several thousand of herself as year after while the affirmative action Angel Charlie’s [a] and her staff and department, for which had IACF allocat- promote mailed them to her personal activities, ed funds affirmative action production company, Brakefield Produc- being gutted. John McGuire awas primarily pro- tions. IACF funds are member, senior staff a trustee on the mote affirmative action activities. I IACF, board of and a mentor to these complained to Leonard Chassman grant recipients. three John McGuire because members asked She informed the senior staff that she complain.
me to Nothing was ever findings intended to take her to SAG’s done. national board. B. Sharon Jensen: Ms. Jensen was responsible for the “Non-Traditional Equal Employment D.The Fraudulent Casting” project which was funded for (EEO-1) Opportunity Report IACF, years by SAG and and was In fall an employee in the Guild’s never audited. She was funded to set Human department, Resources Valerie up a database for members —the same Quetel (“Quetel”), suspected Shick was type provides through my SAG for free preparing a fraudulent disclosure to the department. 4,000 In she had Equal Employment Opportunity Commis- stage members and non-member actors (“the sion report”). Quetel’s EEO-1 protected and no group members. view, report the EEO-1 overstated the complained Members and asked her to number of racial minorities the Guild em- submit an accounting mon- ployed high-level positions. Quetel told ey past years. for the She never Metoyer the report EEO-1 was fraudu- report submitted a to them and received lent, provided Metoyer copy with a *8 $96,000 another lump payment sum in report. the Metoyer compared the EEO- September complained 2000. I to Leon- 1 report’s listing high-level employees ard Chassman and John McGuire be- organizational chart, with an and conclud- cause members asked me complain to was, fact, ed that the Guild in overstating their Nothing behalf. was ever done. the number of racial in high- minorities C. Paul Ward: Mr. Ward was an positions. level independent paid contractor who was $200,000 department over to do a At a feasibility study meeting head in late which completed year. by Chassman, was to be in 2000 attended one McGuire and However, years, Metoyer after three Mr. confronted Ward Shick about the EEO- never a report. submitted 1 report. During meeting, IACF funds Chassman are go to to educational institutions or Metoyer sided with Shick and criticized as request had and check declaration ed on invoice Quetel’s of line.” “out being turn, in place. Henriquez, she heard never taken meeting that after states Gram, I’m to Elaine an relayed suspicion bitch. say, repeatedly “[t]hat Shick department the meet- staff mem- After Affirmative Action get to that bitch.” going had not privately with Chassman ber. Gram knew the seven events Metoyer met ing, because, disclose planned to as a of the Af- him that she occurred member and told report staff, to EEO-1 she would have the fraudulent firmative Action council, it next met by when plenary planned known about events her de- Guild’s budgets Gram, in 2001. As result Henriquez, and Banks April partment. 2000, Metoyer in department in her cuts take the matter to the Guild’s decided to employee to money to hire counsel, lacked Shapiro. in-house Vicki grants. IACF help her administer .She over the invoice and check Gram turned agreements into written entered therefore request Shapiro. to Because the invoice University Marymount Loyola with request and check transferred to funds hold (“LMU”), agreed to whereby LMU LMU, Metoyer’s employees, and one of Metoyer. in “escrow” for grant funds Bae, during had worked LMU Celine grant out “escrowed” agreed pay to LMU August, Metoy- found the month of Gram coordinators, researchers, project funds In request questionable. cheek addi- er’s vendors, Metoyer’s order. upon cheek re- giving tion to the invoice and Shapiro informed quest Shapiro, Gram Metoyer’s Investigation Use of into E. earlier escrowed Metoyer had IACF Funds IACF LMU, as described grant with funds 2000, Me- July September Between above. approxi- to transfer toyer caused the Guild Chassman, and to- Shapiro contacted $120,000 grant funds IACF mately McGuire, they approached who gether pay several by ordering the Guild LMU being highest-rank- the Guild’s addition and listed on LMU letterhead invoices employee, was a member IACF’s ing Some recipient funds. LMU invoice, of Trustees. Based on Board submit- were created and of these invoices and Gram’s statement request, check LMU, by Metoyer. by others ted IACF funds escrowed had escrow plan of her told Chassman LMU, concerned that McGuire was with approval. received his at LMU and funds Metoyer might have mishandled IACF or December Sofía In November 2001, McGuire, January In grant funds. Guild, Banks, employee at temporary Chassman, after “consultation” invoice suspicious-looking discovered IACF, and over to the turned the invoice box. request check Dow, his informed at the Bruce IACF, by Metoyer, request signed check 9, 2001, January McGuire suspicions. On $10,786 in Guild payment ordered (the Dow, Leo Geffner Guild’s met with describing use to LMU. funds counsel), other IACF and three outside documents put, the funds were both which present informed all McGuire trustees. scheduled purportedly events seven listed suspicions. the Guild’s the invoice and August Action staff Affirmative 18, 2001, held a January the IACF On any of the not recall Banks did *9 meeting, board where regularly-scheduled taking place. Banks showed events seven discussed, general terms the trustees request to another and check the invoice for naming Metoyer, the need without and depart- Affirmative Action in the employee account-ability grant of funds. greater shared ment, Henriquez; Henriquez Sylvia January on During a list- teleconference the seven events suspicion that Banks’ $120,000 ly the board voted to retain to grant PwC IACF with funds investigate outstanding grants.4 all of its and preliminarily concluding Metoy- LMU Metoyer was not meeting pay invited to this or er ordered to two LMU of her current provided opportunity explain employees, Bae; how Nguyen Peter and Celine properly administering she was one employee, Bolding; IACF former Rachelle grants through partnership with LMU. and her grant husband IACF funds with- disclosing out their identities to the Guild.5 19, 2001,
By March nearly PwC had completed investigation, Metoy- its finding PwC also found payments Ngu- rough- yen er had ordered the Guild to Bolding questionable escrow and because it 30, 2000, 4. This was the first audit that had been done Metoyer's On October au- anyone thorization, history Ultimately, $20,000 in the of SAG. paid LMU this same investigate PwC would 26 of the Guild's IACF Bolding, employee a friend and former grants. Metoyer at the Guild. PwC concluded that (1) payment improper this because Bold- investigation pay- PwC's focused four ing Metoyer's partner business in an ments: firm, PRC, event-planning which derived its $27,155 Payment # in IACF Grant Funds 1— Metoy- name from the first initials of Patricia Reorganization the Skills Bank for er, Bae, (2) Bolding, Rachelle and Celine Me- 25, 2000, July Metoyer On authorized the toyer’s requests check to the Guild did not $27,155 transfer of from the Guild’s IACF identify Bolding (3) recipient, as the and there trust account to LMU for LMU's work on the Bolding was no any documentation that did Reorganization project. Metoy- Skills Bank $20,000. work for the undisputed testimony er's is that she caused Metoyer disputes PwC's conclusion that $5,000 pay LMU to of these funds to Peter Bolding partner was her business and the Nguyen "legal for consultation services." At suggestion Bolding required per- was not time, Nguyen employee. was a Guild $20,000 payment. form work for the Nguyen payment researching received this for however, (1) dispute, There is no the "P” legal Metoyer whether it was to continue Metoyer's in PRC was derived from first Bank, using a helped Skills which her find name, (2) Metoyer contributed several hun- jobs minority Nguyen for actors. concluded (3) startup, dred dollars to PRC’s and legal orally presented the Skills Bank was requests Metoyer check submitted to the his conclusion to the Guild. identify Bolding recipient Guild did not as the payment PwC found improper this to be Likewise, grant of the funds. there is no (1) Nguyen because was not a licensed attor- $20,000 dispute Bolding pay- used the ney verify Nguyen it could not did startup. ment to fund PRC’s anything money. to earn the $10,736 Payments #3 and Guild #4 — $20,000 Payment # in IACF Grant Funds 2— $2,197 Funds IACF Grant funds "Casting the American Scene” and “Family LMU on the Fun Fest” Projects with Disabilities” 'Performers 9, 2000, August On Metoyer or about or- 14, 2000, September Metoyer On submitted Bolding dered to create an invoice from LMU requests two check to the Guild total of $10,736 charging the Guild for seven events $20,000 grant September in IACF funds. On place that did not take due to a Guild strike. 21, 2000, Metoyer approved payment of her $10,736 payment then ordered requests, thereby own check causing the Guild request funds to LMU based aon check $20,000 Guild to transfer in IACF funds listing these same seven events. requests Metoyer to LMU. The check submit- Metoyer ordered LMU to disburse this ted to purpose the Guild indicated the $10,736 put Family to vendors who payment on the was for a "research coordinator” put Fun Fest she on in lieu of the cancelled "Casting "research associate” on the Specifically, Metoyer events. American Scene” ordered and "Performers LMU with Dis- Bae, $2,599 grants, pay respectively. employee, abilities” Guild The check re- for her however, quest, planning identity Family picnic. did not include the work Fun Fest time, either the research drawing coordinator or the re- At the Bae regular was also search associate. salary from the Guild. also ordered *10 administering, grant Metoyer was they about indicating no documentation found by Ortega Alicia would be contacted to the she of value anything provided had questions. This specific with their the IACF exchange for or the Guild IACF prior followed on occa- process was the report PwC sent payments. respective Metoyer’s grant in connection with to sions conclusions preliminary containing these Nevertheless, Metoyer cooper- IACF, proposal. then told who Dow at Bruce hours, the of several Chassman, ated. Over course McGuire, of PwC’s and Geffner Metoyer about the the auditors asked findings. presented and her question transactions 22, 2001, Metoyer attended March On invoices and copies of the relevant manage- members of senior meeting with acknowledged requests. Metoyer check McGuire, Chassman, Bruce including ment grant funds with LMU escrowing IACF she Dow, two individuals Ortega Alice and to disburse both authorizing and LMU time as the first introduced to for was to two current and IACF funds Guild told Metoyer was representatives PwC. former Guild em- employees, one Guild up so that she meeting was set that the production com- and her husband’s ployee, ongoing complaints her about discuss could fabricating Metoyer also pany. admitted discrimination, EEO- the fraudulent racial that had the invoices on LMU letterhead she found irregularities and the report concealing the Guild the effect of being al- Instead of funding. the IACF funds and identity receiving of those Guild concerns, Metoyer express to lowed funds. IACF two PwC au- by the was “cross-examined” interview, Metoyer com- the During funds. This her use of IACF ditors about to McGuire of race discrimination plained protocol of a SAG was a violation interview Brakefield, complaints question and reiterated that, was a if at time there $2,197 pay to $2,500 quest ordering the to Guild for pay Patois Productions LMU to to trust to cover Family LMU out of the IACF account Fun arranging at the entertainment expenses. Family Fun Fest of the the balance Although on the face of apparent Fest. LMU, payment to Bae was PwC concluded “Patois Produc- to invoice submitted (1) "appeared to have improper production because Bae Metoyer's husband’s tions” is $2,500 Dr. compensation [with] ... double payment went received company; $500 of the (2) Metoyer's approval assistance” Metoyer's as a finder's directly to husband the Guild Metoyer to cause used false invoices fee. Metoyer claims $10,736 money LMU. to to transfer in Guild funds transferred proper Bae payment was because Metoyer the double the basis the invoice LMU on "comp she worked on using time” when was Bolding did not cover ordered fabricate however, Metoyer, ad- Family Fun Fest. Accordingly, Family Fun Fest. of the total cost Bolding the first in- telling fabricate mits Metoyer invoice for the itemized LMU sent an personally fabricated the that she voice and Family Fun Fest. This invoice total cost $2,500 $2,599 Bae, to Pa- second. showed Pro- Productions, payment to Patois PwC concluded payments persons unre- tois (1) Metoyer improper because outstanding ductions Metoyer, balance lated to payment from $2,197 expenses. used false invoices hide Family To for Fun Fest Guild, Guild, Metoyer never submitted submitting to the invoice avoid this to the Guild's invoice the Patois Productions personally an invoice Metoyer fabricated Here, a tri- accounting there is $2,197 department. “reception Dr. from LMU for whether the Guild’s fact as description able issue of by pasting this George Gerbner” Patois received the accounting department reception for letterhead. No such on LMU Rather, bears the invoice Metoyer invoice because ex- Production Dr. Gerbner occurred. Gerbner, stamp is the same states being at- a time despite plains Dr. accounting depart- tendance, Family as that used Guild's Fun honored ment. prepared a check re- then Fest. Dr *11 Jensen, misusing concluded, and Ward were funds The Guild has based on the but had never been audited. Following findings and results of the investigation meeting, prepared PWC, McGuire was by to ter- and audit you committed minate employment immediate- a number of serious acts misconduct ly. decided, however, He suspend Me- in administering the grants. IACF toyer pay, with until investigate (1) he could “friends, PWC concluded that rela- complaints of race tives, discrimination and partners business received lawyer harassment. He retained a from payment Loyola Marymount from Uni- O’Melveny Myers (2) & do so. versity;” “Some invoices were manip- disguise
ulated to purpose payment”; and “Some invoices were Metoyer’s Employ- F. Termination prepared by employees, SAG not the ment with SAG researchers.” 23, 2001, day, The next March Metoyer was summoned regard- to McGuire’s office II. STANDARD OF REVIEW ing “personnel Metoyer matter.” When arrived, present. Metoyer Chassman was We review de novo the district court’s asked to attorney consult with her before summary “determine, judgment to continuing. day, Later that Chassman de- viewing the light evidence most livered a suspending Metoyer’s letter em- favorable to nonmoving party, whether ployment pay. suspension pre- The any genuine there are disputes of material speaking vented April from fact and whether the district court correct- plenary planned at which time she to ly applied the relevant substantive law.” voice her concerns about the chronic race Hall, Morrison v. 261 F.3d complaints against discrimination Senior Cir.2001) (citation omitted). require “We Staff, the fraudulent reports, EEO-1 very little evidence to survive summary Brakefield, Jensen, and Ward IACF judgment case, in a discrimination because grants, cuts, the budget the failure to con- question ultimate is one that can title, firm her and Senior Staffs resistance be through resolved a ‘searching inquiry’- Metoyer’s performance of her affirma- one that appropriately is most conducted tive action duties. factfinder, upon a full record.” Hawaii, Lam University 40 F.3d 17, 2001, May On lawyer (9th Cir.1994) (citation 1551, 1564 and al- O’Melveny & Myers reported to McGuire omitted). teration they were unable to make find- ings regarding Metoyer’s claims of racial discrimination and harassment because III. DISCUSSION participate refused to in- Applicable A. Law 30, 2001,
vestigation.
May
On
McGuire
Metoyer’s employment
terminated
in a let-
In analyzing Metoyer’s claims
stating:
ter
apply
we
“the
legal
same
terminating your
Guild is
employ- principles
applicable
as those
in a Title VII
your
ment
unsatisfactory
due to
per-
disparate treatment
case.” Fonseca v.
formance as
Ariz., Inc.,
Executive
Sysco
Administrator of
Food Servs.
374 F.3d
(9th Cir.2004) (citation
omitted).
Guild’s Affirmative Action Depart-
ment
greater
as set out in
Typically,
detail be-
apply
we
the burden-shifting
low. ...
framework
established
McDonnell
*12
Palace,
also Costa v. Desert
Fonseca,
5(g)(2)(B); see
at 850.
374 F.3d
See
Douglas.6
Cir.2002) (en
(9th
838,
Inc.,
“although the
857
299 F.3d
have also held
But we
Palace,
shifting banc),
burden
Inc. v. Cos-
Douglas
by, Desert
McDonnell
aff'd
at the
90,
2148,
tool to assist
ta,
a useful
framework is
123 S.Ct.
156
539 U.S.
nothing
...
stage
judgment
summary
in a
(explaining that
L.Ed.2d 84
McDon
invoke the
parties
compels
case,
employ-
“the
Title
discrimination
VII
v.
McGinest
Douglas presumption.”
nell
damages
of
escape the imposition
er will
1103, 1122
F.3d
Corp.,
Service
360
GTE
reinstatement, hiring,
any order of
Cir.2004) (citation
(9th
quota-
and internal
...
for
will
be “liable
promotion,” but
still
omitted).
Instead, “when re-
tion marks
relief,
fees, declaratory
and an
attorney’s
motion
summary judgment
to a
sponding
discriminatory ac-
future
prohibiting
order
by using
may proceed
plaintiff]
...
[the
tions”). Therefore,
de-
the mixed-motive
framework, or al-
Douglas
McDonnell
fact,
fense,
undisputed
if
as an
proven
even
or
direct
may simply produce
ternatively,
summary
a
provide
not
basis
does
demonstrating
evidence
circumstantial
Domin
in a Title VII case. See
judgment
likely than
more
discriminatory reason
a
424
Transp. Dept.,
Nevada
guez-Curry v.
(cita-
Id.
employer].”
motivated [the
not
(9th Cir.2005).
1027, 1041-42
F.3d
omitted).
offers
plaintiff
“When
tion
however,
her claims
Metoyer,
brought
motive, a
discriminatory
of
direct evidence
appellee
§
contends
under
motivation of
to the actual
issue as
triable
plain language of
Civil
based on the
if the evi-
created even
employer is
1991,
elimi-
Act
the amendment
Rights
of
v. Hunt
not substantial.” Godwin
dence is
defense does
nating the mixed-motive
(9th
Inc.,
1217, 1221
Wesson,
150 F.3d
under
brought
of
cause
action
apply
Simplot
Cir.1998);
v. J.R.
see also Wallis
Therefore,
“can prove
if the Guild
§ 1981.
Cir.1994) (con-
(9th
885,
Co., 26 F.3d
889
that,
and]
it had
taken [race
even if
summary judgment, “[t]he
that on
cluding
account,
would have come
into
gender
necessary to es-
degree
proof
of
requisite
particular
a
decision regarding
the same
minimal
...
facie case
prima
tablish a
an affirmative de-
then it
person[,]”
has
to the level
to rise
not even need
and does
discrimina-
a cause of
fense to
action
evidence”).
preponderance
of a
§
Price
tion and retaliation
discrimination
In a Title VII
228, 242,
490 U.S.
Hopkins,
v.
Waterhouse
case,
can successful
employer
who
even
(1989).
1775,
L.Ed.2d 268
104
109 S.Ct.
defense, i.e., he
a mixed-motive
ly prove
contention,
appellees
support this
To
re
same decision
have made the
would
case of Mabra
Eleventh
rely on the
Circuit
taking
person without
particular
garding
Workers
Food & Commercial
v.
account,
United
does not es
into
gender
race or
(11th
No.1996,
termined de- only applied the mixed-motive terhouse claims apply to to continued Title VII brought claim fense to a discrimination light in of the § 1981 brought under VII, need for under Title there no Title standard. to the VII changes § a Congress amend 1981 to eliminate to Supreme Court’s after years Two applicable. held The Su- defense never Waterhouse, Congress in Pnce decision had never held that the Title preme Court This amendment Title VII. amended legal applied standard to discrimina- VII Supreme Court’s response to in direct § that brought tion claims under 1981 and including a as of Title VII interpretation to lia- therefore mixed-motive defense liability. The to defense mixed-motive brought both bility applied to claims under Judiciary stated on the House Committee Therefore, § it is 1981. Title VII and Act of Rights on the Civil Report in its has, unreasonable, the Eleventh Circuit 1991: on the fact Con- place weight to that in Water- holding Price The Court’s § Civil amend 1981 gress did not protections severely undermines house a mixed- to eliminate Rights Act of 1991 discrimi- employment intentional against to by Congress known motive defense not to discrimination by allowing such nation exist. Title under completely escape sanction if court holding, even a we this can reason that since appellees VII. The Under has defendant that a Title VII that finds to Price Waterhouse prior held discrimi- in intentional engaged clearly applied to discrimina- legal standard same to end nation, powerless that court is Title VII and brought under tion claims who particular plaintiff if that abuse a of mixed-mo- § the establishment suffered would brought the case have liability under Price Water- to tive defense action disputed employment automatically, without addition- house was alternative, reason. legitimate Court, some applicable this guidance al result, a Con- § As 102-40(11) claims 1981. (1991), under reprint- at 18 Rept. H.R. § at the 1981 to amend gress’s failure For these 549. ed in U.S.C.C.A.N. 1991 meant it amended Title VII time as “to same amended Title VII Congress reasons See decision. made the same Water- would have pre-Price between the 7. One difference Marotta, Rights Rights Act The Civil post-Civil 629 at 618. and the F.2d house standard change prove evidentia- a requires was the standard defendants 1991 Act of 1991 defense ry requirements for the mixed-motive would preponderance of the evidence it Waterhouse, the damages. Costa, Price Prior to 539 See decision. have made the same prove required defendant Ninth Circuit S.Ct. 2148. U.S. at 123 convincing by clear and evidence 934 liability-
that the mixed-motive defense to § ment discrimination claim under apply continued of action legal principles causes follows same as those Therefore, brought § under ap- applicable in a Title disparate VII treat- pellees, following logic Fonseca, of the Eleventh ment case.” at 374 F.3d 850. As Mabra, opinion in Circuit contend that the result, at the very holding least our § plain language requires applica- incorporated Fonseca the amended Title bility of the mixed-motive to liabil- defense § into analysis VII such that the this, ity. problem analysis The liability mixed-motive defense to is no twofold. longer § available under 1981. We there- fore hold that the defendant cannot raise
First, nothing plain there is lan- mixed-motive liability defense to for dis- § guage establishing a mixed-mo- brought crimination claims liability. tive part defense relevant defense, proven mixed-motive even if simply the statute states: fact, as an undisputed provide does not All jurisdiction within the persons summary basis for judgment in a right United States shall have the same Dominguez-Cur discrimination case. See in every Territory State and to make ry, 424 F.3d 1041-42. contracts, sue, and enforce parties, be *15 evidence, give and to equal the full and According to the same we logic, all benefit of laws and proceedings for must find that a mixed-motive defense to security persons of and as property liability is available for a retaliation claim enjoyed by citizens, is white and shall be brought § Stegall under 1981. In v. Cita subject punishment, to like pains, penal- Broadcasting del Company, applied we ties, taxes, licenses, and exactions of ev- the mixed-motive defense liability in a kind, ery and to no other. Title 1061, VII retaliation case. 350 F.3d § 42 Any U.S.C. 1981. mixed-motive de- 1062, (9th Cir.2004). 1068 Since a claim fense interpreted by would have to be § under 1981 legal follows the same princi Second, courts into the statute. assuming ples applicable as case, those a Title VII the soundness of logic that Price Wa- Fonseca, 850, see 374 F.3d at we hold terhouse, without guidance additional liability mixed-motive defense to for Court, from this automatically was extend- retaliation applicable Stegall, found also 1981, § ed to claims under and that applies to this retaliation brought claim order to the mixed-motive de- eliminate § Therefore, under if the mixed- fense liability 1981, § Congress motive defense to proven retaliation is required statute, to amend the we fact, an undisputed it can provide a basis carry must it a step further. summary judgment. for Subsequent to the amendment of B. 1981 Section Claims 1991, Title in the Rights VII Civil Act of clearly determined, in we Metoyer’s accordance with complaint alleged three congressional amendment, (1) § in a 1981 claims: discrimination in the Title VII suit an employer terms, not avoid could or privileges employ- conditions of on liability the basis of the mixed-motive ment on based SAG’s failure to confirm Costa, defense. 299 F.3d at Cir. her 850 as National Director of Affirmative 2002) 90, (2) 2148, Action; 539 U.S. 123 termination; (3) S.Ct. 156 wrongful and aff'd (2003). case, 84 L.Ed.2d In a later we re retaliation. We affirm summary judgment pre-Price confirmed the Waterhouse deter on terms, the claim of discrimination “[ajnalysis mination that an of employ- an privileges employment, conditions of or but
935 Co., 221 Cal. judg- sky v. Watkins-Johnson summary on reverse (1990) 585 Cal.Rptr. 270 App.3d termination wrongful Metoyer’s ment omitted). (citation integration An express claims. and retaliation necessary to a determination clause is Discriminatory Breach Contract See Hel agreement integrated. that an is Sutro, 50 Cal. Pillsbury v. Madison & she ler claim is that first 1981 conditions, 1367, 1382, terms, Cal.Rptr.2d 58 336 App.4th in the discriminated (citation omitted). Rather, particu- “[t]he employment. privileges or determining whether rep- question in that SAG made oral central lar, contends she thus being integration, hired she was there has been resentations Affir- ap doctrine parol National Director whether the evidence position never confirmed intended their plies, parties she was is whether the Action but mative in the remained she to serve as the exclusive embodi position writing Administrator agreement.” Wagner of Executive position ment of their lesser Center; em- throughout her Action 216 of Affirmative Adventist Medical Glendale re- position 1379, 1385-86, Cal.Rptr. In this ployment. Cal.App.3d (1989) (citation pay. quotation less ceived internal omitted). only part of “[w]hen marks Even prohibits discrimina Section parol evi agreement integrated, terms, and “benefits, privileges, in the tion part.” Slivin applies to that dence rule see U.S.C. employment, conditions” of Cal.Rptr Cal.App.3d at sky, 221 Arco 1981(b); Bains LLC v. see also (citation, quotation internal marks .585 Co., Atlantic Products Div. Richfield omitted). alterations (9th Cir.2005), Co., 769 n. 3 405 F.3d *16 pay grade and title employee’s and an may consider Although the court term, of or condition a privilege, qualify circumstances, surrounding of evidence See, King & e.g., Hishon employment. agree and collateral negotiations, prior 2229, 104 S.Ct. 467 Spalding, U.S. integration, determining “[i]n ments when (1984). to show In order L.Ed.2d 59 rep contemporaneous prior the of or case that discrimination, must show Metoyer resentations, agreement collateral posi contractually entitled she was naturally be might must one which be Director of Affirmative National tion of i.e., contract, if in fact separate made as accompany and that her title Action such certainly ap have agreed upon need terms, one of the grade constituted ing pay Wagner, 216 Cal. writing.” peared conditions, employ of her privileges or (citation .412 Cal.Rptr App.3d. “terms, (holding id. ment. See omitted). conditions, employment” of privileges or of part that are clearly included benefits Here, and Me- offered the Guild contract). Metoyer’s claim employment an employment as Guild’s toyer accepted because, parol evidence due fails Affirmative of Administrator Executive doctrine, no admissible evidence there is offer letter the Guild’s Together, Action. had a contractual the Guild establishing constitute acceptance letter and as the National obligation to confirm contract. employment integrated an Action. of Affirmative Director agree that the its intent Guild manifested their law, final ment be the embodiment California Under material terms: by including all agreement [integrated] agreement [an] “[w]hether benefits, starting date. title, salary, judge.” Slivin- for the question is a law addition, In the disclaimers contained in failure to confirm her as the National Di- pre-printed employment Guild’s appli- rector of Affirmative Action. In support cation general manifested a intent on the claim, this represen- offers oral part of employment the Guild its con- by tations made Nirschl and Barbadian be integrated. Metoyer tracts acknowl- during her process. Specifically, interview edged intent, the Guild’s either before or she offers Nirschl’s statement shortly after accepted she the Guild’s offer Guild would changing be the Executive by of employment, signing an application, Administrator of posi- Affirmative Action stating: tion into a National Director of Affirmative contained, I understand that nothing position Action within a few months. Un- application
this conveyed during or my doctrine, der parol evidence Nirehl’s may interview which granted by be prior representations, oral which would not Guild is employ- intended create an naturally have been made separate as a ment contract between me and the contract, are vary inadmissible “to or con- Guild. tradict the terms of integrated written
instrument.” Wagner, 216 Cal.App.3d at (citations omitted). I Cal.Rptr. understand that representative no addition, any authority Guild has acknowledges to enter into any agreement qualified employment any nature of representations similar specified time, period or to make com- Barbadian: promises mitments or or assure Q. did he say What about it? benefits or other terms conditions of A. He said that department was in employment such agreements, unless disarray basically, because of the promises, commitments or assurances requirements job, the title should are made in writing signed by the director, be—should my be as with other Executive Director Screen Actors position. He basically said that —the Guild. thing said, same Ms. Nirschl but that added). (emphasis the executive—this executive adminis- Moreover, Metoyer manifested her in- position trator be changed, proba- would *17 tent that the offer Guild’s letter and her bly. acceptance letter be the final embodiment Q. give you Did he any time line where agreement of their by explicitly accepting it would changed? be on the basis of the terms in contained A. No. Guild’s letter: letter is written “This Q. Did he promise you “Absolutely, I my confirm acceptance position of promise you it changed”? will be Administrator, Executive Affirmative Ac- tion, with all the terns and conditions as No, A. because said he might he be your 27, stated in April letter dated 1998.” leaving. added).
(emphasis Even if Metoyer’s the title of position were part not Notwithstanding integrated the fact of an employment that nei con- tract, ther the Guild’s offer letter nor her cannot accep “[t]here be a express valid tance letter future implied contract, mentions confirmation contract and an each em- as the National Director of bracing Affirmative the same subject, but requiring Action, Metoyer alleges discrimination in different results” “express because the “terms, conditions, or privileges of term em is controlling if it even is not con- ployment” under 1981 because of SAG’s tained in an integrated employment con-
937 privi- a Affirmative Action or that was Aramark Halvorsen tract.” Uniform employment. 1388, lege of her 1383, Inc., Services, Cal.App.4th 65 (citations omit- Cal.Rptr.2d Wrongful Termination ted). is that the contention Metoyer’s second can Alternatively, summary granting erred in court district of em privileges in
prove discrimination
of discriminato-
as to her claims
judgment
discriminatory
of
basis
on the
ployment
n
district
under
ry termination
included
were
benefits that
of
denial
Douglas bur-
the McDonnell
applied
court
Hishon,
at
467 U.S.
See
contract.
her
(cid:127)
determined
and
framework
shifting
den
(“An
may provide
employer
104 S.Ct.
‘specif-
present
“failed
plaintiff
that the
it is
that
many benefits
employees
its
evidence
circumstantial
ic’ and ‘substantial’
ex
by any
to furnish
obligation
no
genuine
a
raise
sufficient to
pretext
of
contract.”).
this ben
But
implied
press or
respect
fact” with
of material
issue
the em
of
parcel
“part
be
efit must
her.
to terminate
SAG’s decision
example
For
relationship.” Id.
ployment
court
that the district
Metoyer contends
held
Hishon,
Court
Supreme
judgment be-
summary
granting
erred
partner [in
become
opportunity
“the
cir-
direct and
presented both
cause she
of an associ
parcel
part
firm]
law
demonstrating
evidence
cumstantial
law
employee [at
as an
status
ate’s
discriminatory
harbored
management
SAG
Metoy
S.Ct. 2229.
at
Id.
firm].”
We
African Americans.
animus toward
well.
as
this account
fails on
claim
er’s
agree.
as
that confirmation
is no evidence
There
Action
of
evidence
Affirmative
Metoyer presented
Director of
direct
National
re-
of several
position
in the
parcel of
form
discrimination
was part
management
Affirmative
senior
marks
members
Administrator
Executive
bias.
of racial
the existence
fact,
points
suggesting
the evidence
Action.
by a
hiring,
bigoted
remarks
We have held
At the time
contrary.
may tend
management
Affir
of senior
Director
member
position
National
no
discrimination,
if directed
even
and as
within SAG
to show
Action existed
mative
plaintiff.
Cordova
Administrator
than
someone other
result, the other Executive
Cos., 124 F.3d
City
Ins.
in New York
v. State Farm
Action
of Affirmative
Furthermore,
Cir.1997).
we
(9th
Af
Administrators
prior
Executive
a decision-
by such
been
that remarks
regularly
have held
Action had
firmative
bias,
if
even
several
show
a manner
maker tend
position
to such
elevated
County
v. Clark
associates
old. See
years
elevation of
comparable,
Mustafa
Dist.,
*18
1179-80
F.3d
School
in law firms.
partners
Cir.1998).
court
hold the district
Accordingly, we
Me-
when
August
in
summary
Beginning
the Guild
granting
err
did not
Staff
the Guild’s Senior
toyer petitioned
to con-
Metoyer’s “failure
judgment as
of Affirmative
Director
create National
no triable
there is
firm” claim because
explained,
Linda Schick
position,
Metoy- Action
the terms
regarding
fact
issue of
on senior
of color
no people
are
privileges
“[t]here
or the
contract
employment
er’s
will
unlikely that there
staff,
very
and it’s
is no
there
Specifically,
employment.
of her
Metoyer related
job,
her
part of
be.” As
Metoyer’s
supporting
evidence
admissible
by mi-
racial
discrimination
complaints
contractually obligated
the Guild was
claim
Shick
the Guild.
within
nority employees
National Director
to confirm
responded Metoyer’s
relayed complaints
that since there is no direct evidence of
that African
being kept
Americans were
discriminatory
by McGuire,
animus
sum-
low-paying jobs by stating, “I’m keeping mary judgment
appropriate.
was
them there because I
keep
eye
want to
Guild is correct in its
contention
there
on them
people
because black
like
party
no
evidence linking Schick to the termi-
and eat and don’t do their work.” Chass-
decision,
nation
but there is evidence that
man responded, “[t]hey
glad
to be
ought
raises a genuine issue of
fact
material
as to
they
job.”
have a
In
meeting,
another
the role of
firing
Chassman in the
decision.
Chassman made a discriminatory remark Chassman
supervisor
direct
response
to more complaints
was, therefore,
at SAG and
responsible for
by
discrimination
minority employers:
decisions regarding her employment.
“All of
people
lazy
are
these
and malinger-
particular, he had the authority to termi-
ers.
Is that something special with Afri-
nate her employment. McGuire consulted
can
they
Americans that
have to socialize
with Chassman on the decision to suspend
all the
they
time and
are never happy?
Metoyer. The letter informing Metoyer of
They
happy
should be
job.”
to have this
that decision
signed
by
delivered
Schick warned Metoyer that SAG senior
Chassman.
prior
Just
to being placed on
management did not
people
tolerate
of col-
leave,
administrative
Metoyer was sum-
talking
or
way
did,
back the
she
comment-
moned to McGuire’s
regarding
office
“a
ing
“you
talk more than other black
personnel matter”; when she arrived
people here. The rest of them are like—
present.8
Chassman was
they’re like a tribe
something.
or
They
hang
together,
they
around
don’t talk.
Even if Chassman is not considered
You’re unusual. You talk too much.”
decision-maker, “[wjhere
ultimate
...
presented
has also
circumstan-
the person who exhibited discriminatory
tial
of discriminatory
evidence
animus held
animus
participated
influenced or
in the
by SAG
management
senior
towards Afri- decisionmaking process,
reasonable
can Americans. The
complaints
numerous
factfinder could conclude that the animus
by
discrimination minority employees of
affected
employment
decision.”
SAG, in particular the complaints to Me- Dominguez-Curry,
The Guild
in the
contends that
deci-
McGuire
sionmaking process
was the sole
decision-maker
terminating
evidence of
Metoyer. Therefore,
his discriminatory remarks,
the discriminatory
Metoyer has
statements
presented
Shick and Chassman are
direct evidence sufficient
irrelevant
they
because
had no role in the
survive summary judgment of discrimina-
termination decision. The Guild argues
tory animus
aby
decision-maker.
*19
8. There is also evidence in the form of a letter
Chassman and
generally
McGuire were
work-
president
SAG's
to Chassman
and
ing together
respect
with
to all dismissals
in
McGuire
regarding
disciplinary
actions
the Affirmative
department.
Action
against
department
"members”
of the
that
Equal Employ-
the fraudulent
highlighting
not
Guild was
that the
is evidence
There
(EEO-1) report submit-
ment Opportunity
terminating
in
by discrimination
motivated
Opportunity
Equal Employment
ted to the
con-
Guild
the
particular,
In
Metoyer.
(EEOC).
spite of her posi-
In
Commission
be-
terminated
Metoyer was
that
tends
of Affir-
Administrator
tion as Executive
that
audit,
showed
which
the PwC
of
cause
told that
Action, Metoyer was
mative
than
more
misappropriated
had
of
complaints
to raise
business
was
However,
grant funds.
$30,000 in IACF
and
she was
that
racial discrimination
the
to
in the record
evidence
is also
there
than
anyone other
to
concerns
to take her
McGuire,
had
who
Specifically,
contrary.
appellant
When
Chassman.
Schick and
to-
racial animus
demonstrated
previously
oppo-
that her
warnings
failed to heed
deposition
in his
Metoyer, testified
ward
unwelcome,
was
to discrimination
sition
three
be of the
“was to
PwC audit
that the
com-
relayed
to the
responded
staff
senior
talking
we’ve been
that
grants
[Metoyer]
discriminatory
comments
plaints
why the audit
asked
When
about.”
by both Schick
Americans
about African
re-
grants, McGuire
these
just
to
limited
Chass-
supra III.B.2.
See
and Chassman.
of the
because
reason was
“The
sponded,
SAG
encouraging
Metoyer of
man accused
that’s
specifically
raised
concerns
with com-
forward
come
employees to
concentrated.”
be
audit should
where
and became
racial
plaints of
discrimination
a
raises material
conflicting evidence
This
sowing discontent
Metoyer was
angry that
judg-
summary
fact precluding
of
issue
of discrimination.
allegations
by raising
ment.
raised
appellant
Finally, when
and
direct
the substantial
of
light
Senior
report
to SAG
EEO-1
fraudulent
discriminatory
evidence
circumstantial
her intention
announced
management
made
which
management,
by SAG
animus
present
discrepancies
to discuss
Metoyer, we conclude
audit
decision
employ-
by
complaints
discrimination
issue
genuine
a
raised
Metoyer has
plenary session
national
ees to SAG’s
likely
was more
SAG
whether
fact as
vindictively,
responded
Schick
April
in its
by discrimination
motivated
than not
that bitch.”
bitch,
get
I’m going
“That
at 1042
See id.
her.
terminate
decision
session, Metoy-
plenary
Shortly before
may
case
VII
(“[T]he
Title
plaintiff
manage-
by SAG senior
suspended
er
preponder-
through
violation
establish
findings
of the
ostensibly because
ment
protected
that a
...
the evidence
ance of
result
As a
audit.
PwC
from the
factor.
motivating
‘a
played
characteristic
allowed
was not
suspension,
plain-
summary judgment,
To overcome
session.
plenary
address
toas
a triable issue
raise
merely
tiff
must
retaliatory
”
evidence
direct
omitted)).
(citation
There-
question.’
this
in the
Chassman,
participant
intent
court
the district
fore, we conclude
decision, for
and termination
suspension
summary judgment
in its
erred
protected
activi
engagement
discriminatory termi-
claim of
§ 1981
suspension, which
timing of the
ty, and the
nation.
Metoyer’s termi
ultimately resulted
fact as
issue
nation,
a triable
raises
Retaliation
claim.
retaliation
cir-
direct
both
Metoyer presented
a “mixed-
asserts
The Guild
of retaliation
cumstantial evidence
employer
which
defense
motive”
complaints
bringing discrimination
by show-
for retaliation
liability
avoid
can
management
attention
SAG
*20
ing that
it would
made
have
the same
questions
there were
concerning whether
decision
any impermissible
absent
motiva
investigation
truly encompassed all
Stegall,
tion.
1068;
See
350 F.3d at
Price
outstanding grants. Thompson based his
Waterhouse,
ing firm A Discrimination and Re- Metoyer concluded made taliation Claims questionable payments to Bae Ngu- yen, two current Guild employees; Bold- presented has also claims ing, a recent Guild employee; and Metoy- of discrimination and retaliation under the er’s production husband’s company. While California Fair Employment and Housing the facts of the misconduct are undisputed, Act. appellees contend that she con SAG’s contention that it would have made sented to the dismissal of these state law the same decision is undermined Me- claims. We hold that has toyer’s declaration that persons other en- consented to the dismissal of her state law gaged in questionable practices related claims and that judgment on pleadings IACF funds faced no con- disciplinary is reversed on both claims. sequences.
This case was first filed in California In addition to the McGuire testi state court. Metoyer originally pleaded mony, there also evidence in the rec only state-law discrimination claims. Af- ord that the PwC audit was not a com ter the state trial judge granted the Defen- pletely unbiased investigation. Ron motion dant’s for summary judgment on Thompson, C.P.A., evaluated the that, method the basis the Supremacy ology by PwC, utilized and concluded that Clause the United Constitution, States
941 effective, it be must to be the dismissal for 2,9 Labor- VI, the cl. Art. Const. U.S. Here, Me- unambiguous. and unqualified Disclosure and Reporting Management ambig- too in brief is her toyer’s statement Me- (“LMRDA”) preempted 1959 of Act consent. such to constitute uous her claims, Metoyer added FEHA toyer’s may to dismiss” prepared “is statement removed the defendants and § 1981 claims dismiss- she is than something other mean Defendants court. federal to case the she is await- reasonably mean may It ing. contending summary judgment, moved dismissal; for such consideration ing some preempts LMRDA the again that once not preliminary, mean equally may Metoyer’s FEHA barring FEHA, thereby final, decision. on this argument During claims. based view that its explained motion, the court § 1981 FEHA and Metoyer’s Although on the or lost be won case would as- Guild largely parallel, are claims coun- Metoyer’s and asked 504”) (“ § claims 1981 § 504 29 U.S.C. serted the [FEHA] just “[W]hy dismiss sel, claims, an asser- Metoyer’s 1981 barred claim?” Metoy- necessarily bar that does tion Therefore, one reason- FEHA claims. er’s then parties request, court’s theAt statement of interpretation able preemption on briefs supplemental filed dismiss prepared to was that she rul- judge’s trial the state on whether and claims, determined that if the court FEHA supplemental her In binding. ing claims from federal her bar § 504 did not against preemption. argued brief, Metoyer Further, Metoyer re- trial. proceeding however, stated, that: She deny judgment the court quested dur- question court’s to the response extensively against argued entirety and its why Plaintiff as argument oral ing in the claims her FEHA of preemption along law claims the state needs still court erred Thus, the district brief. same claims, Me- Dr. Heisser federal Metoyer’s statement interpreting her state dismiss prepared to toyer is her FEHA of dismissal stipulating to trial proceed claims FEHA claims. of causes 1981 section 42 U.S.C. action. the Title apply courts California added.)10 this state- Based on brought under (Emphasis to claims framework VII Inc., held that 24 court ment, the district Nat. v. Bechtel Guz See FEHA. FEHA dismissal Cal.Rptr.2d consented Cal.4th (“Because the similari claims. P.3d employment federal state ty between “unquali- upheld previously haveWe courts look laws, California discrimination made dismissal stipulation of oral fied apply when precedent federal pertinent judg- to consent effective court” as open statutes.”). re therefore We own McCool, ing our Eitel See on claims. ment summary court’s However, district Cir.1986). verse 1470, 1473 F.2d Thing thereby, be bound shall VI, States of the United clause 9. Article any State to or Laws Constitution states: Constitution notwithstanding. Contrary Constitution, the Unit- the Laws This VI, cl. Art. Const. in Pursuance U.S. made be shall ed States which thereof; made, or which Treaties all motion, Metoyer re- part of this same As made, Authority of the be shall motion deny the Guild's court quested the States, Law supreme be shall United entirety. in its summary judgment Land; every State Judges in and the *22 on judgment the state law discrimination LMU was a cut-out. paper The trail at and retaliation claims for the same reasons the Guild would show only LMU had we reverse on the federal law discrimina- received the in payment funds for invoices tion and retaliation claims. or for events. LMU’s records would show who the real recipients were, but those
IV. CONCLUSION records were not on the premises. Guild’s For the reasons, foregoing we AFFIRM a misguided In opinion, the majority summary judgment on Metoyer’s § 1981 rejects the Guild’s defense notwith- claim of discriminatory failure to confirm standing validity of Metoyer’s racial her as National Director of Affirmative claims, discrimination per- Guild had a Action. We REVERSE summary judg- right her, fect to fire and would have done ment on the federal and state discrimina- so, Metoyer’s because of theft of its funds. tion and retaliation claims Metoy- because is, That the majority rejects the “mixed- er has raised a triable of fact issue as all motive § defense” in a 1981 discrimination of these claims. action. PART; AFFIRMED IN REVERSED In reversing summary judgment for the IN party PART. Each is to bear its costs Guild, the majority got the law and the appeal. on wrong. facts BEA, Circuit The Law. Judge, The concurring Rights Civil part Act of 1991 (“1991 CRA”)3 and dissenting part: amended Title VII to make the mixed-motive only defense a defense to sued Screen Actors Guild damages, but not to liability, discrimina- (“the Guild”)1 for race discrimination and tion actions brought under “section 2000e- retaliation after the Guild fired her.2 She 2(m) of this title.” § U.S.C. 2000e- was fired. But only after she admitted to 5(g)(2)(B). The majority § holds 2000e- the Guild she $30,000 had doled out over 5(g)(2)(B) somehow applies to actions Guild funds partners, business brought § under This, 1981. in spite of friends, and family through a pretty sim- § fact that 1981 was also amended ple, effective, but scheme. She admitted to other particulars with CRA, the 1991 she bogus fabricated invoices and concoct- but no limitation de- mixed-motive ed inexistent events. She authorized Guild fense § enacted in payments for these phoney items to the nice-sounding Loyola Marymount Univer- effect, majority opinion amends (“LMU”). sity There, a compliant § LMU 2000e-5(g)(2)(B) to make its limitations employee would hold the Guild till money on the mixed-motive applicable defense Metoyer gave instructions disburse- brought actions 2000e-2(m) “under section ment to her partners, friends, business or section 1981 of this This title.” violates family. provision fundamental of the United 1. Also named as Defendants were John Equal file claim with the Employment Op- McGuire, the Acting Guild's Executive Na- portunity (“EEOC”). Commission She sued Director, tional Chassman, and Leonard 42 U.S.C. provides which Hollywood Guild's Executive Director. For generous a more avenue of relief than Title the sake clarity, I will refer to all Defen- See VII. note 11. infra dants collectively as “the Guild.” 102-166, 3.Pub.L. (effec- No. 105 Stat. 1071 bring did Title VII action 21, 1991). Nov. tive employment. discrimination in She did not affirming district opinion majority legislative that vests Constitution States for the summary judgment court’s the United Congress power discriminatory breach Guild States.4 the rest From claim. of contract amendment opinion’s majority district reversing the opinion majority inter- also creates 2000e-5(g)(2)(B) *23 I re- summary judgment, grant of court’s Circuit. the Eleventh split circuit dissent. spectfully Commercial Food & v. United Mabra F.3d 176 No. Union Local Workers I. Cir.1999). amen- (11th Such 1357, 1357-58 also 2000e-5(g)(2)(B) reading of datory (1) then, is: wheth- case of this The crux other reasoning of the wise from departs a remains defense mixed-motive the er § 2000e- held have that circuits sister after § 1981 actions to complete defense inappli- is language, plain its by 5(g)(2)(B), CRA; if the 1991 of the enactment Age brought under to actions cable exists as of fact so, a issue triable whether Act, the Employment in Discrimination Metoy- to terminate decision to the Guild’s § 1983.5 Act, 42 U.S.C. Claims False $30,000 of over giving wrongfully for er get away cannot One Facts. The friends, family, and business Guild funds the Guild gave that fact to cover invoices falsifying partners, admitting fabrica- firing her for motive her tracks. up in funds invoices, of Guild payment tion of poli- undisputed Guild violation direct A. of documentation lack cies, and total recognized the first Court Supreme ex- The supposed in rendered any services discrim- Title VII by mixed-motive defense defalcated funds the Guild change for Waterhouse that in Price issue actions no triable ination is simply There her. 104 S.Ct. Hence- 109 490 Hopkins, funds. U.S. the Guild’s pilfered she Price Circuit, (1989). sued employ- Hopkins 268 in Ninth L.Ed.2d forth, at least claiming VII, termi- Title to trial go under forced Waterhouse will be ers against long as so employee, discriminated thieving a Price Waterhouse nating proposing claim in not gender a colorable makes the basis employee her on candidacy played discriminatory motive after partnership potentially her for 231-32, S.Ct. action. employer’s Id. at role on hold. put that Price found court The district 1775. an I think majority, Unlike on partly based decision Waterhouse’s si- cannot sub statute to one amendment stereotyping and gender impermissible majori- Unlike another. rewrite lentio Hop- reason legitimate on partly issue that no triable there ty, I think style. interpersonal an abrasive kins had theft Metoyer for have fired would Guild Su- 236-37, 109 S.Ct. Id. aof discrim- the absence fraud even mixed- employer’s held Court preme Part III.B.1 I concur inatory motive. It is diffi- 2000e-5(g)(2)(B). title.” this I., Const., sec.l. art. 4. U.S. does limitation why the fathom cult to opinion does majority Inexplicably, away be- just subsection apply statute de- the mixed-motive apply the limitations limitation, but in the not named it is cause brought under actions to retaliation fense section another a statute apply to does VII, upon the common of Title § 2000e-3 Code, similarly not named. States the United apply the limitations ground that sense Part I.C. See infra 2000e-2(m) brought section "actions motive in making an employment decision for racial in employ- discrimination can be a complete defense to liability: ment. ... The same standards are used a plaintiff “[0]nce in a Title VII case prove both ... claims and facts sufficient that gender shows played a motivating give rise to one are give sufficient to part in an decision, employment the defen- rise to the other.” City Lowe v. Monro dant may avoid a finding of liability only via, Cir.1985) (cita F.2d by proving it that would have made the omitted).6 Thus, tions with the Supreme same decision if even had not allowed Court’s Waterhouse, decision in Price gender to play such a 244-45, role.” Id. at mixed-motive defense also became an affir- (footnote omitted). S.Ct. 1775 This mative defense to actions brought under defense became known as the “mixed-mo- § 1981. See Odima v. Westin Tucson Ho *24 tive defense.” Waterhouse, Under Price Co., (9th tel 595, Cir.1993) 991 F.2d 601-02 the mixed-motive was a complete defense (reversing both § Title VII and judg 1981 bar to Title VII if liability the defendant ments the plaintiff on based the district proved, by a preponderance of the evi- failure, alia, court’s inter to consider the dence, that it would have made the same defense); mixed-motive Bains LLC v. employment decision absent the discrimi- Co., Arco (9th Products 764, 405 F.3d 772 natory 252-53, motive. Id. at 109 S.Ct. Cir.2005) (rejecting the defendant’s mixed- motive § defense to a 1981 claim for lack
At the of time the Price evidence).7 Waterhouse of Indeed, even the majority decision, every circuit to ques- address the concedes that because the same standards tion, including Ninth, the had applied the are used prove to both Title VII and same standards for liability to Title § VII claims, 1981 the mixed-motive defense and § 1981. “Title VII and section 1981 became a § defense to 1981 actions before are overlapping but independent remedies the 1991 CRA’s enactment.8 Thomas, See Lopez Inc., also Co., v. S.B. 261, 831 (8th F.2d Cir.1993) 984 264-65 (2nd Cir.1987) F.2d 1184 (applying the (holding the gave district court a proper Douglas McDonnell framework from Title VII mixed-motive plaintiff’s instruction for claims law analyze action); § case to 1981 Lewis v. VII); § under 1981 and Title New Burnham 910, Univ. Pittsburgh, 725 F.2d 915 n. 5 Homes, of Prairie Burnham, v. Inc. Vill. 910 of (3rd Cir.1983) (holding § 1981 and Title VII 1474, (7th F.2d Cir.1990) 1483 (holding a require actions the proof same elements of mixed-motive proper instruction is in a claim and collecting authority Second, from the brought §§ 1982). under 1981 and Fourth, Fifth, Circuits). Eighth and asserts, majority however, 8.The that at the 7. See Jail, also Pulliam v. Tallapoosa County enactment, time of the 1991 CRA’s the mixed- 1182, 185 F.3d Cir.1999) 1184 (holding motive § defense to 1981 was a only defense the mixed-motive defense is an affirmative damages, to but not liability. support To defense liability § actions); 1981 Thom assertion, this majority the relies on a number Inc., as v. Denny’s, 111 F.3d 1511-12 of Ninth opinions Circuit predate the (10th Cir.1997) (holding it was error for the Supreme Court’s decision in Price Waterhouse reject district court to a mixed-motive instruc- and apply the only mixed-motive defense case); tion in a Hargett 1981 v. Nat'l West damages, but liability, not to in Title VII Bank, USA, minster (2nd 78 F.3d 840-41 actions. Cir.1996) (holding a Price mixed- Waterhouse motive instruction is proper in a Nevertheless, 1981 ac- Waterhouse, Price which was tion if "there is evidence to show that an decided enactment, before the 1991 CRA’s employment determination product was the changed legal landscape for the mixed- legitimate a mixture of illegitimate and motive Waterhouse, defense. After Price (quotation motives” marks citations omit- mixed-motive complete defense became bar ted)); Williams v. Fermenta Animal Health liability, merely damages. defense to
945
an individual
claim
which
aOn
effect,
any,
if
what
then is
question
The
2000e-
section
a violation
proves
applicability
had
CRA
dem-
respondent
2(m)
title
this
complete
aas
defense
mixed-motive
would
respondent
onstrates
§ 1981.
liability under
bar
ab-
in the
action
the same
taken
have
motivating
impermissible
sence
B.
factor,
court—
must,
Ias
relief,
interpretation,
injunc-
my
begin
declaratory
(i)
I
may grant
And
CRA.
clause
provided
text
(except
as
relief
tive
the statute
here, the words
dem-
“where,
costs
fees and
attorney’s
(ii)), and
inquiry is
judicial
unambiguous,
directly attributable
to be
are
onstrated
Costa,
Palace,
Inc.
under section
Desert
claim
of a
complete.”
pursuit
to the
2148, 156
S.Ct.
title;
2000e-2(m)
of this
U.S.
(citations
quotation
damages
L.Ed.2d
or issue
(ii)
award
shall not
are
in this case
omitted). At issue
admission, rein-
marks
requiring
order
added
1991 CRA
provisions
pay-
new
two
or
statement, hiring, promotion,
first
§ 1981.
VII,
(A).
but
Title
subparagraph
ment,
described
the “mixed-motive”
establishes
provision
(emphasis
*25
200’0e-5(g)(2)(B)
§
42 U.S.C.
Id.
liability.
VII
Title
for
ground
modified
added). Thus,
2000e-5(g)(2)(B)
§
It states:
2148.
S.Ct.
123
Price Wa-
insofar as
Price Waterhouse
this
provided
the mixed-mo-
recognized
as otherwise
Except
Court
terhouse
employment
liability.
an unlawful
bar
complete
a
subchapter,
as
tive defense
com-
Martin,
when
985
Reynolds
is
v.
established
practice
Estate
See
race,
Cir.1993).
Under
demonstrates
party
2
470, 475 n.
plaining
F.2d
origin
sex, or national
the mixed-mo-
color, religion,
2000e-5(g)(2)(B),
§
the new
any employ-
damages
only
motivating factor
a defense
a
is
tive defense
2000e-2(m),
other factors
though
but
§
even
under
practice,
ment
action
for an
relief
practice.
equitable
liability
prospective
motivated
also
attorneys’ fees.
and
pro-
2000e-2(m).
second
The
§
U.S.C.
42
decide
us to
requires
case
plain-
to limit
a defendant
allows
vision
on an
has
2000e-5(g)(2)(B)
§
effect
What
avoid
completely
remedies, but not
tiffs
The answer:
§ 1981.
under
brought
action
under
brought
action
in an
liability,
have
could
Congress
none.
Absolutely
a
prove
can
2000e-2(m)
the defendant
if
§
20006-
Section,
explicit.
more
been
defense:
mixed-motive
corollary,
As a
Lowe,
at 1010.
F.2d
244-45,
775
See
Waterhouse,
109
U.S. at
490
Price
concedes,
VII case
Title
majority
and as
VII
a
("[0]nce
plaintiff in Title
a
S.Ct. 1775
also con-
defense
mixed-motive
motivating
law on
a
played
gender
shows
case
under
defense
mixed-motive
decision,
trolled
the defen-
employment
part in
on the
Thus,
law
VII case
Title
when
§
liability
...
finding
may
a
avoid
dant
by Price
was altered
defense
mixed-motive
Waterhouse,
the same
have made
would
that it
proving
defense
the mixed-motive
so
gender to
not allowed
if it had
even
decision
Consequently, the mixed-mo-
§
(footnote
added)
under
(emphasis
a role.”
play such
liability
complete bar to
became
defense
tive
omitted)).
supra note
well. See
as
§ 1981 actions
Title
was a
Waterhouse
Price
fact that
(citing authorities
text
accompanying
and
consequence.
material
no
is
VII decision
as from the
well
as
decision,
Circuit
the Ninth
Waterhouse
the Price
time of
At the
Tenth,
Eleventh
Seventh,
Second,
Eighth,
liability
defining
standards
we were
Circuits).
law.
VII case
to Title
by reference
§ 1981
5(g)(2)(B) applies only
“[o]n
claim in
Congress
Where
intended to limit
which an individual proves a violation un-
defense,
mixed-motive
it did so expressly
2000e-2(m)
der section
of this title.” Sec-
as to certain claims (damages)
tion 2000e-5(g)(2)(B) does not state that it but not others (prospective equitable relief
applies
“[o]n claim in which an individual
fees).
and attorneys’
§
See
2000e-
proves a violation under section 2000e-
5(g)(2)(B). This is compelling evidence
2(m) or section 1981
this title.” Yet the
Congress’s
omission of such a limita-
majority, after a
legal
convoluted
analysis,
§
tion in
1981, which Congress also
§
amends
2000e-5(g)(2)(B) to say just
amended in the very
Act,
same
was inten-
that.
tional and not accidental.
The majority’s judicial amendment
is
It is
also “cardinal principle of statuto
even more difficult to understand under
ry construction” that we
effect,
must “give
any known precept of statutory interpreta-
if possible, to every clause and word of a
tion because Congress
also amended
statute.”
Walker,
Duncan
U.S.
§ 1981 in the 1991 CRA. See
Rights
Civil
174, 121
2120, 150
S.Ct.
L.Ed.2d 251
ofAct
102-166,
Pub.L. No.
105 Stat.
(quotation marks
omitted).
citations
(1991).9
1071-72
Absent from the
We must be
“reluctan[t]
treat
statutory
CRA’s
§ 1981,
amendments to
how-
terms
ever,
surplusage.”
(quotation
is
Id.
limitation on the applicability
marks
omitted).
citations
mixed-motive
remarka
§
defense to
1981. It
ble disregard
is
of this
well-established that
fundamental principle,
if “Congress in-
particular
the majority’s
cludes
application
language
§
one section of
2000e-
a statute
5(g)(2)(B)
but
it
omits
another
renders the
section of
following
Act,
the same
words in
generally presumed
5(g)(2)(B)entirely su
2000e—
*26
that Congress
perfluous:
acts intentionally
“On
pur-
a claim in which an individ
posely in
disparate
the
ual proves
inclusion or
exclu-
violation under section 2000e-
sion.” Russello v.
States,
2(m)
United
464
U.S.
this title ...”10 If
provision
this
16, 23, 104
S.Ct.
(1983)
947 § 1981 into VII Title 2000e-2(m). amended §of violation claims de- the mixed-motive that such analysis not ren- would that interpretation The longer available is no liability fense super- 5(g)(2)(B) § part of der 2000e— majority’s reliance The § 1981.” under provision makes the one is fluous Fonseca misplaced. entirely Fonseca brought only to actions applicable mixed-motive with to do nothing had 2000e-2(m). § amend- CRA’s the 1991 with or defense language, statutory clear its Under Fonseca, mere- we Title VII.12 ments applicability no has 2000e-5(g)(2)(B) § holding been had we what ly reaffirmed & Aluminum Kaiser See § 1981 actions. Douglas the McDonnell for two decades: U.S. 494 Bonjorno, Corp. v. Chem. VII Title from burden-shifting framework 842 L.Ed.2d 1570, 108 835, 110 S.Ct. analyze used also be can law case legis- expressed clearly (“Absent (1990) Sysco Food v. Fonseca § 1981 actions. statu- contrary, [the to the intention lative (9th 840, 847-50 Ariz., F.3d 374 Servs. of regard- be ordinarily must language tory] Monrovia, City Cir.2004) v. Lowe (citing Ry. conclusive.”); Johnson ed cf. Cir.1985)). majority The F.2d 460-61, Inc., 421 U.S. Exp. Agency, holding as Fonseca’s of context out takes (hold- 1716, L.Ed.2d 295 S.Ct. framework Douglas McDonnell to the complaint administrative VII’s Title ing § 2000e- a provision, extends ac- Title VII only to apply requirements did court the Fonseca which 5(g)(2)(B), claims). §to apply do not tions original, quite majority’s The cite. even intent its declare Congress Rarely does erroneous, interpretation quite but of embrac- Instead specificity. such But the enough. is bad 2000e-5(g)(2)(B) it, rejects majority intent, ing that error stretch this compounds majority world in the what stating without out Fonseca quoted language ing it does if mean would 2000e-5(g)(2)(B) were the words in which context side only as defense mixed-motive limit used. 2000e-2(m) claims.11 §to our because reasons majority C. legal same “the held in Fonseca decision *27 plain circumventing the to In addition VII Title § 1981 to apply principles” majori- 2000e-5(g)(2)(B), §of language “incorporated holding actions, Fonseca’s damages recoverable punitive pensatory Congress's toas speculate loath I am 11. VII, exist limits no such whereas defense under Title limiting mixed-motive for reasons U.S.C. actions, § 42 damages under but for VII discrimination Title only Nevertheless, VII covers 1981a(b)(3). Title Finally, who for those § § actions. 1981 discrimination, congres § 1981 is not for statutory but text beyond employment look a provides intent, § 1981 a more provides I note § 1981 sional Because limited. so relief may relief, avenue Congress attractive more much avenue generous First, VII Title VII. does Title than de plaintiffs the mixed-motive retain have wanted or more fifteen employers with only applies liability under bar complete fense as such no § has 1981 whereas employees, only to applicability limiting its while § U.S.C. 42 requirement. threshold under damages recoverable limited the more Second, requires VII 2000e(b). Title § VII. Title remedies, administrative to exhaust plaintiff (a step EEOC with the filing a claim such as "motive,” alone let Indeed, word take), seeking before Metoyer did not appear in the "mixed-motive," not even does § 1981 damages, whereas action private opinion. Fonseca U.S.C. 42 requirement. no such has Third, on com 2000e-5(f). limits there are § 948 ty’s holding conflicts with the decisions of to Title VII actions, retaliation and by
many of our sister First, circuits. extension, §to 1981retaliation actions. majority creates a direct split circuit In so holding, majority relies our Circuit, Eleventh which correctly in- decision in Stegall v. Citadel Broadcasting terpreted § 2000e-5(g)(2)(B) to be inappli- Co., (9th 350 Cir.2004). 1061 F.3d In Ste § cable to 1981. Mabra v. United Food & gall, which was decided after the 1991 Commercial Workers Local Union enactment, CRA’s we assumed mixed- No.1996, 176 F.3d 1357-58 Cir. motive defense continues to be complete 1999). The Mabra court reasoned that the bar to liability in a Title VII retaliation plain language § 2000e-5(g)(2)(B) § action under 2000e-3. Id. at 1068. The makes no § reference to 1981. Id. The Stegall court did explain why the 1991 court found this omission to be particularly CRA did not alter the analy mixed-motive telling where the 1991 CRA also amended sis in a Title VII action, retaliation per § 1981 to add two subsections, new none haps because that explanation is very of which limit the applicability of the straightforward. As discussed above, mixed-motive §to defense 1981 actions. § 2000e-5(g)(2)(B), which limits appli Id.13 cability of the defense, mixed-motive applies to a Title VII
Second, at discrimination least claim seven of our sister cir- § under 2000e-2(m). By plain cuits its lan have § concluded that 2000e- guage, it is inapplicable to 5(g)(2)(B), provi which other by its express language sion, including a Title VII applies only retaliation to Title claim VII discrimination § under Thus, 2000e-3. claims the Stegall § 2000e-2(m), court is inapplicable was quite correct even to assume the Title mixed- VII retaliation claims under motive defense § continues to be a complete 2000e-3. See Celli, Matima v. 228 F.3d bar liability (2nd a Title Cir.2000) (so VII retaliation holding and col- Today, action. lecting majority cases extends Ste- First, Third, gall’s holding §to Fourth, Seventh, retaliation actions Eighth, and Eleventh (but § not to Circuits). actions) discrimination These courts § hold 2000e- and holds mixed-motive 5(g)(2)(B)’s complete plain de language compels this fense to liability § under a conclusion 1981 retaliation though, even like in 1981 ac- claim. tions, courts have “generally borrowed from [Title VII] discrimination law in de- The majority’s decision to re-affirm Ste- termining the burdens and order of proof gall, but extend § 2000e-5(g)(2)(B) to in [Title VII] retaliation cases.” Woodson actions, discrimination leads to Co., v. Scott Paper (3rd 109 F.3d some puzzling First, results.14 under the Cir.1997). Indeed, even the majority opin- majority’s holding, the *28 limi- mixed-motive § ion holds 2000e-5(g)(2)(B) inapplicable is to tations Title VII claims, discrimination 13. The majority rejects Marba as relying on majority’s The conclusion that mixed-mo- “the faulty premise’’ that the mixed-motive tive is a complete defense to liability for complete defense was a liability defense to § 1981 retaliation actions also undermines its § under 1981 before the 1991 CRA's enact- earlier conclusion that the mixed-motive de- ment. For the 8, reasons supra outlined note fense a defense to damages, but not the majority is incorrect. With the Supreme liability, to § under 1981 when the 1991 CRA Court's decision in Price Waterhouse and be- supra enacted. See note 8. fore enactment, the 1991 CRA’s the mixed- motive defense complete became a defense to liability § under 1981 actions as well.
949 mixed-motive under the retaliation alter the defense to Title VII inapplicable while Act and the Price § False Claims Water claims, to 1981 discrimina- applicable are logic analysis governs to house mixed-motive defy to It would seem tion claims. claim); v. Shelby County Harris Bd. limitations under mixed-motive apply the (11th action, Educ., 1078, 5, 99 F.3d n. 1085 §a 1084 2000e-5(g)(2)(B) to 1981 § Cir.1996) in (holding 2000e-5(g)(2)(B) § is part in wholly different is situated which actions).15 Code, § applicable not to a to 1983 States but the United § claim under 2000e- VII retaliation Title Thus, join I our sister circuits would is, all, a 3, after Title VII claim which § is holding 2000e-5(g)(2)(B) inapplicable why Second, is there no reason itself. claim other than a Title VII dis- complete be a de- mixed-motive should § brought action 2000e- crimination under § liability in a 1981 retaliation fense 2(m) just says. ... as it action, § discrimination not 1981 but §in 1981 that nothing There is II. action. this
supports distinction. Having 2000e-5(g)(2)(B) § concluded Third, 1981,1 majority’s impact § extension has now turn to the no implicitly this 2000e-5(g)(2)(B) application § 1981 of the law to the facts of § § 2000e-5(g)(2)(B) circuits that not company with our sister case. Because did parts analysis § under interpret 2000e-5(g)(2)(B) inappli- be alter the mixed-motive Age § I brought analyze claims must this case under cable to standard, Act Employment Price pursuant Waterhouse Discrimination (“ADEA”). Principi 434 an in mak- Baqir employer’s See v. which mixed-motive (4th Cir.2006); ing Glanz remains employment n. 13 decision F.3d 745 506, complete liability § F.3d to a 1981 Mgmt. Corp., 391 defense man v. Metro. (3rd Cir.2004); if can Young Accordingly, n. claim. the Guild estab- 3 Lewis Ass’n, of fact 208 F.3d lish no triable issue exists Men’s Christian (11th Cir.2000). ADEA have fired in the absence though Even would actions, motive, actions, governed any discriminatory the district like are law, summary judgment the Guild case sister circuits by Title VII our court’s §of affirmed. plain language 2000e- must be follow the limitations to 5(g)(2)(B) and hold three 1981 claims asserts apply mixed-motive defense do (1) discriminatory breach complaint: her Lewis, F.3d at 1304- ADEA claims. failing to confirm of contract for Action; Affirmative Director of National (3) termination; wrongful retalia- majority implicitly departs Finally, the majority affirms the district hold the tion. sister circuits which our summary judgment on the discrimi- 2000e-5(g)(2)(B) in- court’s §of plain language claim, join and I natory breach contract yet other sections applicable to However, disagree I holding. v. Basin Code. See Norbeck United States majority’s holding on the retaliation Coop., 215 Elec. Power F.3d Cir.2000) claims, re- which wrongful termination (holding the 1991 CRA did *29 however, expressly § incor- the text of ADA Eighth Circuit holds 2000e- 15. The remedies, brought 5(g)(2)(B) apply porates "powers, proce- does actions ("ADA”). VII, Act including § the Americans Disabilities 2000e-5. See of Title dures” Inc., Transp., 60 F.3d Pedigo v. P.A.M. See 12117(a). 42 U.S.C. 1981, 1995). 1300, (8th 1301 Unlike Cir. 950 treatment”). grant attempt the district court’s of sum- To
verses to establish dis- mary judgment treatment, for the I would parate Guild. Metoyer solely offers summary judg- affirm the district court’s Therein, Metoyer her own declaration. all ment on three claims.16 declares she told John about McGuire Industry misuse Advancement and
A. (“IACF”) Cooperation grants by Fund majority the district court holds Jensen, Brakefield, Shawna Sharon granting summary judgment erred in on Ward, they Paul but were neither investi- wrongful termination claim because gated disciplined. [ER 38:21-23]. nor Metoyer presented direct and circumstan- matter, Metoyer’s As initial declara- demonstrating tial evidence that the Guild tion is insufficient not because does es- discriminatory harbored animus toward Brakefield, Jensen, tablish and Ward were I disagree. African Americans. I would protected outside her class. The declara- affirm the district court’s of sum- respective tion neither identifies their judgment mary for the Guild and hold they nor states races are all not African Metoyer prima failed to establish a facie American. wrongful case of termination based on dis- crimination. Brakefield, if I Even were to assume prima establish a To facie case of dis Jensen, Caucasian, and Ward are as Me- crimination, (1) Metoyer must show she assert, toyer’s briefs declaration (2) class, to a belongs protected she was is insufficient because it does not show qualified position, for the she was sub Brakefield, Jensen, and Ward “simi- were jected action, to an employment adverse larly Metoyer] [to situated ... in all mate- (4) similarly and that situated individuals respects.” rial Selig, Moran v. 447 F.3d her protected outside class were treated (9th 748, Cir.2006); 755 Vasquez County v. favorably. Aragon Republic more v. Sil L.A., 634, Cir.2004) 349 F.3d Inc., ver Disposal State 292 F.3d 658 (holding similarly are “individuals situated (9th Cir.2002). they jobs when display have similar conduct”); fails to establish the fourth ele- similar n. (citing id. Co., ment prima Inc., of her facie (“disparate case Hollins Atlantic 188 F.3d court, majority 16. The chooses ought change to use the we district to a dif- Douglas conducting appellate McDonnell framework ferent standard on review for no Instead, analysis. Indeed, apparent its majority reason. [SER 65:7-10]. relies on previously our decision in we have McGinest v. GTE held: Service (9th Cir.2004), Carp., 360 F.3d Ordinarily, argu- we decline to consider forego Douglas the McDonnell burden-shift- appeal. ments raised for the first time on McGinest, ing framework. we held legal argu- This rule serves ensure that responding summary judgment "when ato ments are considered with the benefit of a plaintiff] may proceed by ... [the motion us- record, fully developed appel- factual offers framework, ing Douglas the McDonnell or al- late courts benefit of the district court’s ternatively, may produce simply direct or cir- prior prevents analysis, parties demonstrating cumstantial evidence that a sandbagging opponents their with new ar- discriminatory likely reason more than not guments appeal. employer].” motivated [the Id. While County Maricopa, Dream Palace v. 384 F.3d " majority 'nothing compels (9th Cir.2004) (citations correct omitted). parties Douglas to invoke the McDonnell majority Neither nor the asserts " presumption,' (citations omitted), where, id. justification departing general from this here, plaintiff Therefore, exclusively relied on the rule. I my analysis using conduct Douglas McDonnell framework Douglas before the the McDonnell framework. *30 Cir.1999) Metoyer that, Accordingly, failed to make out (holding simi- be situated, wrongful must have the facie case of termination employee prima larly subject similarly to the same be because she failed establish supervisor, same standards, engaged have the same protected situated individuals outside her conduct)). First, Metoyer grant was a favorably.19 more class were treated administrator, according again to whereas Thus, I affirm the court’s would district Brakefield, Jensen, and Ward Metoyer, grant summary judgment of for the Guild (“these [ER 38:23 grant recipients. were Metoyer’s wrongful termination claim. recipients”)]. Metoyer’s dec- three B. who, identify anyone, if at not
laration does Brakefield, administered the the Guild Metoyer’s retaliation claim survives Second, Jensen, grants. unlike and Ward Douglas three-step analysis.20 McDonnell employee, Metoyer, was a Guild who Nevertheless, majority I disagree with the “independent were Brakefield and Ward presented has not sufficient Guild contractors;” is identified as Jensen summary support judgment evidence to employee independent or an a Guild either I on the mixed-motive defense. based Third, 38:21-2]. Me- [ER contractor.18 summary affirm the district court’s would not establish or toyer’s declaration does retaliation judgment for the Guild on the Jensen, Brakefield, and Ward claim even fact exists claim because no triable issue of (1) prohib- policy Guild’sstrict violated the as to the Guild’s mixed-motive defense. com- receiving from iting employees Guild defense, an em- Under the mixed-motive funds, or kind IACF pensation liability by establishing ployer can avoid invoices that had the effect fabricated have made the same decision that would concealing recipient true of IACF any discriminatory motive. See absent Finally, the decla- funds from the Guild. Waterhouse, 244-45, 109 Price U.S. Brakefield, the case ration shows majority though 1775. Even is S.Ct. Ward, Jensen, the Guild confront- inquiry is correct that the mixed-motive Metoy- suspicions, whereas ed one, an unusual presents factual this case case, invoices it was confronted with er’s summary judgment warranting set of facts Metoyer to fabri- have been admitted for the Guild. by Metoyer person- cloth cated from whole summary fit for makes this case Rae- What ally, partner, or her PRC business underlying is facts of adjudication that the Bolding. helle 20.First, plaintiff estab- the district court held Metoyer’s declaration does not indicate retaliation, indepen- which prima Brakefield and Ward were facie case of whether lished a Second, Guild or of the IACF. appeal. dent contractors of the does the Guild the Guild asserting a its nondiscriminato- met burden of course, disparate as on all elements 18. Of termination, namely, Metoyer's ry reason for case, the has the burden treatment claimant ("PwC") Cooper's conclu- Pricewaterhouse "similarly showing were situated” others Metoyer transferred Guild's sions that she was treated dif- before she can establish friends, part- family, business funds to burden, Metoyer utterly fails ferently. This Third, ners, invoices. and falsified carry. a triable issue of fact has established pretext there a nexus sufficient because prima if facie 19. Even established summary judgment, albeit a tenu- termination, purposes wrongful the Guild would case of one, dis- Leonard Chassman's ous between summary judgment because still be entitled to criminatory termi- remarks of fact exists as the Guild's no triable issue nation. See Part II.B. mixed-motive defense. infra *31 Metoyer’s misconduct are admitted Me- in excess Family Fun costs, Fest which toyer herself. It is undisputed that listed Bae husband’s com- investigation began Banks, when Sofia a pany payees, Metoyer personally fabri- temporary employee at the Guild and an cated bogus invoice on LMU letterhead African woman, American (without discovered a mention or Metoyer’s Bae hus- suspicious invoice Metoyer’s in band) inbox. Me- that charged the Guild’s IACF trust toyer admits this invoice was fabricated. $2,197 account for a reception in Dr. Metoyer As testified deposition, she George Gerbner’s honor.21 Metoyer sub- had her partner, PRC Rachelle Bolding, mitted this bogus invoice, not the one create the invoice charging the Guild identifying Bae and Metoyer’s husband’s $10,736 for seven events that never oc- company as payees, and signed check re- [See curred. ER 46:92-94]. Metoyer quest to the Guild’s accounting depart- signed then a check request listing ment, causing it $2,197 to pay in IACF same events, seven causing the Guild to funds to LMU. $10,736 transfer in Guild funds to LMU to Similarly, it is undisputed Metoyer cover Family Fun Fest expenses. [ER caused Peter Nguyen $5,000 to receive
4:500-01]. LMU then paid a portion of IACF grant funds for performing legal these funds to Bae, Celine a Guild employ- research and offering legal advice while he ee, and to Metoyer’s production husband’s was not a licensed attorney. It is also company. undisputed Nguyen this received pay- It is also undisputed that when LMU ment while a Guild employee, an appar- submitted an invoice to Metoyer $2,197 ent22 violation of the Guild’s undisputed separate No event honoring Dr. Gerbner sent Spencer stating, an e-mail "We Rather, was ever held. although acknowl- plan.” have a [ER 46:23]. edging that Dr. Gerbner was not in attend- later, days Five Nguyen ance, submitted a letter Metoyer claims Dr. Gerbner was "hon- stating: LMU "At the behest of ored” Dr. Family at the Patricia Fund Fest. There is no Heisser-Metoyer Guild, evidence Screen that Dr. Actors I Gerbner even knew he was have being legal rendered "honored” or how he consultation was services in "honored.” furtherance of the skills reorganization bank 22. Metoyer offers no evidence disputing the project. accept Please $5,000 this invoice for following suggest facts that she fabricated a in consideration for such services.” [ER consulting job in supplement order to Ngu- 3, 2001, 46:214]. On January Nguyen accept- yen’s $5,000 salary Guild with IACF ed employment as Metoyer’s Executive Asso- funds after the Guild decided not to meet ciate with 8, start date January Nguyen’s salary just demand-which happened a starting salary $50,000. [ER 46:212]. $5,000. to be Nguyen employed 8, 2001, January On Hope Singer, outside in the Special Guild's Projects Division. [ER legal Guild, counsel met with In December 46:18]. a strike involving and the counsel, Guild’s in-house Shapi- Vicki the Guild ended Nguyen’s position was ro, regarding the need legal for a opinion on eliminated. Knowing [Id.] that his position whether it was lawful for the end, Guild to coming ask to an Metoyer interviewed Guild race, members identify Nguyen their to be nation- her Executive Associate and ality, gender, disability, selected and other position him for characteris- on December tics on the questionnaire Skills [Metoyer’s Declaration; Bank 46:21], ER —the Salary legal same question negotiations Nguyen $5,000 requested Jeffery Spencer between ("Spencer”), compensation recruiter in the for researching. Guild’s human [ER 52:2- department, resources Nguyen At no 3]. during time meeting reached $55,000 this did Me- impasse Nguyen toyer demanding Nguyen indicate had been asked to re- $50,000. and the offering Guild 46:18], search or actually researched this issue. [Id.] [ER thereafter, Shortly 28, 2000, on December Singer researched and analyzed the issue for *32 from employees current prohibits strictly employees Guild prohibiting strictly policy from any in form compensation receiving IACF from compensation receiving from funds. fact IACF the undisputed Also funds. re- Bolding to Rachelle caused
Metoyer giving Metoyer and interviewing After shortly after funds IACF $20,000 in ceive ques- these explain to opportunity an her the Guild’s From Guild. Bolding left the transactions, the concluded Guild tionable was Bolding to payment the perspective, explana- adequate provide to she failed Guild the because egregious particularly record in the evidence is no There tions. Metoyer and Bolding to believe reason had Guild’s the or PwC’s suggesting either PRC,23an event in partners business were faith. good in not made conclusions were company. planning three Nevertheless, majority holds the the were of misconduct findings These record undermine the in of evidence pieces by conducted investigation an result and cre- defense mixed-motive the Guild’s third-party account- well-respected PwC, a First, the ma- fact. issue of a triable ate IACF, a by hired was firm. PwC ing allegation that “Metoyer’s on relies jority Guild. entity the from legal separate questionable in engaged persons other inves- to PwC to retain voted board IACF faced and IACF funds related practices a board grants outstanding all tigate The “other consequences.” disciplinary no the discussed the trustees where meeting are majority refers the to which persons” accountability of greater for need Jensen, Brakefield, Ward. and presumably nam- and without terms general funds-in in Part above outlined reasons For the conclud- independently Metoyer. PwC ing Jensen, Brakefield, and however, II.A, payments questionable Metoyer made ed Metoyer similarly situated are not Ward Metoyer’s and Bolding, Bae, Nguyen, com- basis valid provide not and do company. production husband’s parison. this miscon- all Metoyer admitted Jensen, Brakefield, Ward and Further, two interviewed was she when duct Metoyer’s investigated because were at- of her presence in the auditors PwC investiga- cooperate own refusal un- Thus, facts 73:115]. [ER torney. PwC March Following the tion. fabri- misconduct —the Metoyer’s derlying Brake- Metoyer claimed where in interview funds invoices, transfers cated in engaged Jensen, Ward had field, and the lack policies, Guild’s of the violation decid- conduct, McGuire John questionable rendered —are for services documentation allegations. investigate ed to Metoyer contests undisputed. all terminating Me- Instead 56:55-6]. [ER transactions, claiming propriety her on theft, placed McGuire toyer for pay- make authorized to she was retained leave administrative paid Guild contest ments, does but Patricia first initials of concluded 23. PwC con- Shapiro of her informed two hours Bae Bolding, Celine Rachelle Metoyer, full was questionnaire clusion Metoyer admits January "PRC.” name up On [Id.] make law. compliance with $5,000 her first IACF from is derived "PRC” Nguyen received the “P” However, (Patricia). 38:47-48]. services legal consultation [ER funds name sum issue, the exact partner by happenstance business was a disputes same she salary. to his unwilling to add acted PRC, that she contending the Guild instead course, had contends no one Bold- Of to Rachelle “big sister” a mentor setting Ngu- Spencer in authority to overrule [Id.] operations. in PRC’s Bae ing and Celine salary. yen's O’Melveny IACF, Myers, completely & then unaf- is a separate legal entity which Guild, investigate 73:12-13, filiated with the Me- [ER 73:111-12]. Guild. [Id,.] Nevertheless, toyer’s claims. Indeed, Guild, O’Mel- recipient as a of IACF veny Myers & unable make grants, target investiga- was the of PwC’s *33 findings respect Metoyer’s with to claims tion, Thus, not its overseer. the Guild was Metoyer participate because refused to in position a to influence PwC’s investi- investigation, “notwithstanding the numer- gation. requests provide ous that she information Further, Metoyer was not the sub- sole regarding any all and matters she wanted ject of the audit PwC because it is undis- investigated.” [Id.] McGuire decided to puted ultimately that investigated PwC Metoyer only fibre after he informed grants, only IACF three of which were & O’Melveny Myers to unable by Metoyer. [ER administered 73:111- determine allega- the merits of (“Hunt”), 12]. Hunt James who was one cooperate. [ER tions due to her refusal to of the two employees PwC to conduct the asserts, Metoyer 56:6-7]. now and the audit, in a stated declaration that PwC was holds, majority there is a triable issue of not “asked investigate only Metoy- Dr. fact to the as Guild’s mixed-motive defense grants, grants er’s all but that had been the did investigate
because Guild mis- awarded to Guild grants the as well as Brakefield, Jensen, by conduct and Ward- been had awarded to other entities.” [Id.] Metoyer though even herself undermined Dow, Bruce the Administrative Director of investigation. major- the to the According IACF, the stated in his declaration that (thwart ity, Metoyer can have her cake the other grant five at administrators the by investigation refusing cooperate) investigated, Guild were four of whom (sue eat too the Guild the failed were Caucasian and one whom was an investigation). African [ER American 73:14]. woman. Second, majority the to a cites written Hunt why stated the reason the final re- by C.P.A., declaration Ron Thompson, port only by Metoyer detailed misconduct questions concerning “there were whether was because PwC “did not any signs find investigation truly encompassed [PwC] questionable expenditures irregulari- or all outstanding First, grants.” it is axio- ties with respect any IACF [other] asking question matic that does not es- grants.” [ER 73:112]. tablish the facts related in the question. Thompson’s “questions” prove nothing, one Finally, majority support also finds way Second, or the other. Thompson statement of Daniel Smith-Chris- “questions” based his on final audit topher, professor majority LMU. The report by PwC, submitted which contained reasons that because with PwC’s interview only “the results of [the] review Dr. Smith-Christopher only focused on grants by” managed Metoyer. [ER Metoyer, investigation PwC’s must have 4:521]. majority The explain, fails to how- been by influenced discriminatory animus ever, how this statement evinces any bias Metoyer. toward The reason why PwC part of the Guild. questioned Dr. Smith-Christopher majority’s imputation of bias simple: about is PwC found evi- Guild based on the Metoyer, statements the PwC dence that only Metoyer, report inapposite. PwC was retained agreement”24 entered into an “escrow applied “Escrow” was the term requires the kind. An "escrow” deposit course, agreement. nothing money pursuant Of it was agreement to an that calls Quaker Corp. Atel Fin. the record. transfer Guild’s wrongfully to LMU (9th Cir.2003) Co., sug- 321 F.3d evidence Coal there was no Where funds. (“We judg may LMU affirm a district court’s employees used other Guild gesting misconduct, no any ground supported by there was ment on engage record, offi- question LMU or not the decision of the for PwC whether reason employee. grounds about other relied on the same cials district court Metoyer's adopt.”). we state reasoning or short, majority sees smoke where because, claim fails law discrimination foregoing on the fire. Based there is no II.A, Metoyer in Part has discussed above evidence, of fact exists that triable issue no prima case of failed to establish facie any em- have terminated Guild would *34 County Tarin v. discrimination. See of engaged to have similar ployee found L.A., 2n. Cir. 123 F.3d I would affirm Consequently, misconduct. 1997) courts the (noting apply California summary judgment the district court’s claims). FEHA Title VII framework to the claim. the Guild on retaliation Likewise, I affirm the district would C. on grant summary judgment court’s of majority’s the rever- I also from dissent Metoyer’s retaliation claims be- FEHA summary judgment of sal cause, II.B, discussed above Part no as claims under and retaliation discrimination of as to the triable issue fact exists Guild’s and Employment Fair the California mixed-motive defense.25 (“FEHA”). agree I the Housing Act erred that the district court
majority III. in her Metoyer’s statement interpreting preemption a issue brief on supplemental sum, it as majority got wrong the of her stipulating to the dismissal as majority law as the facts. The claims. FEHA words added a statute where the words exist, majority created a error, do not I af- this would Notwithstanding of where no triable issue triable issue fact Metoyer’s FEHA the dismissal of firm fact I would affirm the district supported by of exists. grounds on alternate claims recipi- learning upon hap- questioning of the true money transfer of pening personal The escrow holder is the funds.” of an event. ents uses of [Hunt or Declaration, party who takes instructions neutral ER 73:118]. parties to and in strict adher- the escrow both agreement escrow or instructions. ence Here, explicitly Although no California court has (2) (1) agreement, was no escrow there bar adopted defense as a the mixed-motive money party with an interest no second FEHA, courts have liability under California instructions; deposit gave no incorporating adopted jury instruction required to property or other action title (“If you 12.26 find that the See BAJI defense. transfer funds. cause the escrow holder to action, subject employer's which is the holder”; it a “cut no “escrow was LMU was claim, actually plaintiff’s motivated Metoyer's who tracks as to out” used to cover non-discriminatory discriminatory and both long money. So getting the Guild's reasons, if it can employer not liable LMU, they only payees' were at names evidence by preponderance establish Anybody looking were not at Guild. alone, reason, legitimate standing its see “LMU” as records would the Guild’s make the same have would induced only apparent reason to payee. "[T]he decision.”). places FEHA no Like then receive the make the transfer to LMU to scope this defense. on the limitations payments pre- was to invoices and make Accounting Department from vent the Guild’s summary judgment court’s for the entirety. in its
Guild respectfully
I dissent. America,
UNITED STATES
Plaintiff-Appellee, BUSSELL,
Letantia Defendant-
Appellant. America,
United States of
Plaintiff-Appellee, Bussell, Defendant-Appellant.
Letantia 06-50088,
Nos. 06-50140.
United Court Appeals, States
Ninth Circuit.
Argued and Submitted Feb. Sept.
Filed