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Ninth Circuit

Updated to November 5, 2018

Ninth Circuit

Nunies v. HIE Holdings Inc., No. 16-16494 (9th Cir. Nov. 1, 2018). Panel: TASHIMA, Fletch, Hurwitz. Claims on Appeal: ADA and Haw. State law "regarded as" termination. State law statutory claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff did not waive arguments below, even if presentation was sparse and made in oral argument on the motion. Alternatively, because issue presented one of law and does not depend on the factual record, court could disregard any alleged waiver and reach the merits. District court erred in concluding, as a matter of law, that plaintiff was not regarded-as disabled, by relying on pre-ADAAA case law. Plaintiff no longer required to prove that employer subjectively believed that Plaintiff is substantially limited in a major life activity. Since ADAAA, it is enough that the employer perceives the employee has an impairment. Genuine dispute of material fact about whether he was fired for perceived impairment, where once employer learned of the shoulder pain, it rescinded the offer, misrepresented that the job was no longer open, and forced plaintiff to resign. Argument that regarded-as definition of disability does not apply to "transitory and minor" impairments misplaced; employer has burden to prove this defense. Doubts about whether shoulder pain was genuine presented dispute of fact for jury. District court further erred in concluding that plaintiff did not meet the "physical" definition of disability under the ADA. Plaintiff identified two major life activities affected by shoulder: working and lifting. He testified that any time he lifted his arm above chest height - even without an object - he would experience a stabbing pain and numbness. Further, he had a lifting restriction of 25 pounds. Fact that employee was able to work despite pain did not negate that it substantially limited in his ability to work.

Taylor v. BNSF Ry. Co., 904 F.3d 846 (9th Cir. 2018). Panel: Per curiam (Fisher, Gould, Paez). Claims on Appeal: Wash. state law disability discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Question certified. Grounds: Certifies question to Washington Supreme Court regarding whether obesity qualify as an "impairment" under the Washington Law Against Discrimination.

Harris v. County of Orange, 902 F.3d 1061 (9th Cir. 2018). Panel: BERZON, Rawlinson, Murphy. Claims on Appeal: ADEA and Calif. state law benefits. State law contract claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: ADEA (and state FEHA law) applies to retirees, and thus apply to changes in retirees' health benefits. Nevertheless, under Hazen Paper Company v. Biggins, 507 U.S. 604 (1993), and Kentucky Retirement System v. EEOC, 554 U.S. 135 (2008), employer may treat retirees as a group differently, with regard to medical benefits, than employees as a group, taking into account that the cost of providing medical benefits to the retiree group is higher because the retirees are on average older. Retirees and current employees are not "similarly situated" for purposes of comparison.

EEOC v. BNSF Ry. Co., 902 F.3d 916, 34 A.D. Cases 8 (9th Cir. 2018). Panel: GOULD, Fisher, Paez. Claims on Appeal: ADA "regraded as" hiring. Disposition Below: Summary judgment for plaintiff [plaintiff]. Outcome on Appeal: Affirmed and remanded [plaintiff]. Grounds: ADAAA, "discarded the requirement that an impairment had to substantially limit a major life activity for the discrimination to be actionable under the 'regarded as' prong." Regardless of any alleged uncertainty about Holt's condition, BNSF "request[ed] an MRI because of Holt's prior back issues and condition[ed] his job offer on the completion of the MRI at his own cost," and "assumed that Holt had a 'back condition' that disqualified him from the job unless Holt could disprove that proposition." Thus, "BNSF chose to perceive Holt as having an impairment at the time it asked for the MRI and at the time it revoked his job offer." (BNSF did not contest that Holt was a "qualified individual.") Employer engaged in discrimination by "condition[ing] Holt's continuation through the hiring process on Holt providing an MRI at his own cost." BNSF argued that that ADA § 12112(d)(3) allows the employer to "require a medical examination after an offer of employment." But the panel notes that this section requires "all entering employees [to be] subjected to such an examination regardless of disability." ADA § 12112(d)(3)(A). Here, BNSF applied a special requirement only to Holt because of his perceived impairment: "An employer would not run afoul of § 12112(a) if it required that everyone to whom it conditionally extended an employment offer obtain an MRI at their own expense ... Where, however, an employer requests an MRI at the applicant's cost only from persons with a perceived or actual impairment or disability, the employer is imposing an additional financial burden on a person with a disability because of that person's disability." notes that the ADA generally requires the employer to assume reasonable costs of accommodating disabilities, and that "[p]utting the burden to pay on employers helps to ensure that employers do not abuse their power to require testing at the post-offer, pre-employment stage." To underscore, the holding is not limited to the "indisputably high cost of MRIs" or Holt's inability to pay, but applies to all cost-shifting: "our holding here applies regardless of the cost of the medical test at issue, as well as the employee's ability to pay." While BNSF tried arguing that there was no evidence of anti-disability animus or motive, the panel observes that such proof is unnecessary: "where it is clear that an action was taken because of an impairment or perception of an impairment, no further inquiry or burden-shifting protocol is necessary to establish causation." Remands the case for further findings on the injunctive relief. The panel observes that it is unnecessary for a court entering an injunction under the ADA to make findings under the conventional four-factor test. It even notes that a nationwide injunction might be justified under this case, where "Holt lived in Arkansas at the time of his application, applied for a position in Washington, and was rejected at the direction of employees in BNSF's Texas office." But because the district court failed to make findings or articulate its reasoning, the panel was unable to review the injunction.

Campbell v. State of Hawaii Dep't of Educ., 892 F.3d 1005, 130 FEP 1587 (9th Cir. 2018). Panel: O'SCANNLAIN, Clifton, Ikuta. Claims on Appeal:  1. Title VII termination (race, sex). 2. Title VII harassment (race, sex). 3. Title VII retaliation. 4. Title IX. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Loss of performance review, decision to "instigat[e] an investigation against" her, alleged denial of her request to transfer to another school (which she did not request), not being placed on paid leave, and assigning her a math class were not adverse employment action. Additionally, even if the various alleged actions could be adverse employment actions, the record is devoid of evidence that any similarly situated employees of a different race or sex were treated more favorably than plaintiff was. 2. Derogatory comments from students in several instances concerned offensive comments that were by their terms based on plaintiff's race or sex, some of which were severe. No genuine dispute of material fact that employer responded appropriately (investigating, then issuing suspensions, detentions, and transfers), and there was little recurrent harassment by students after they were disciplined for such conduct. Law does not require an employer to be immediately and perfectly effective in preventing all future harassment by a third party. Suggestion that employer's response should have been even more severe and exacting-that it should have done everything in its means immediately and permanently to end all student harassment once it started-would be impracticable. Alleged incident that associate principal referred to plaintiff "ragging" was not severe, could not reasonably be considered sex-based reference. Comments by associate principal referred to female students as "hoochi mammas" and told them to "cover up their business" was not severe and not directed at plaintiff. 3. Even under broader standard of adverseness that applies to retaliation claims, most of plaintiff's alleged adverse actions cannot support a prima facie case of retaliation. Analyzing the two that might state a claim - (1) investigation into plaintiff's alleged misconduct and (2) plaintiff's assignment to teach remedial math - plaintiff fails to make out pretext. Employer had non-retaliatory grounds for both. 4. Title IX analysis mirrors Title VII. Standard for harassment is even more exacting (deliberate indifference).

Snapp v. United Transp. Union, 889 F.3d 1088, 33 A.D. Cases 1717 (9th Cir. 2018). Panel: MELLOY, Fernandez, Fletcher. Claims on Appeal: ADA failure to accommodate. Disposition Below: Judgment after a jury verdict [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District judge did not misinstruct jury on burden of proof. Circuit authority holds that at the summary judgment stage, where there is evidence that the employer refused to engage in the interactive process, the burden shifts to the defendant to prove the unavailability of a reasonable accommodation (see Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000) (en banc), vacated on other grounds sub nom., US Airways, Inc. v. Barnett, 535 U.S. 391 (2002)). But at trial, the burden remains always on the plaintiff to prove an accommodation. Jury was also correctly charged that the plaintiff bears the burden of proof on reasonable accommodation, not merely a burden of production. Defendant could contradict admissions of a designated witness in a Fed. R. Civ. P. 30(b)(6) deposition. A Rule 30(b)(6) deposition is not akin to a judicial admission that cannot be contradicted, holds the court, and the record contained substantial objective evidence supporting BNSF, including "a full history of communications between the parties showing that Snapp communicated repeatedly with BNSF, sought reinstatement of his long-term disability benefits, and accused BNSF, [long-term disability carrier] CIGNA, and his doctors of conspiring against him to deny him benefits. Moreover, two of Snapp's letters included doctor's notes that did not release him to work."

Scott v. Gino Morena Enterprises, LLC, 888 F.3d 1101, 130 FEP Cases (BNA) 1489 (9th Cir. 2018). Panel: CALLAHAN, Nguyen, Bataillon. Claims on Appeal: Title VII harassment (sex) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under when the aggrieved person is given notice of the right to sue by the EEOC, not when the person becomes eligible to receive a right-to-sue notice from the EEOC (i.e. 180 days after the charge is filed with the EEOC). Court regards contrary language in Stiefel v. Bechtel Corp., 624 F.3d 1240 (9th Cir. 2010) as non-binding dicta. Ninety-day clock not triggered by issuance of a right-to-sue notice by state agency. District court thus erred in dismissing all claims as time-barred. Nevertheless, Title VII claims may be based only on alleged acts occurring after she filed her first administrative charge to the extent such acts are part of a single hostile work environment, because the continuing violations doctrine allows a plaintiff to base Title VII claims on conduct alleged to have occurred after she filed her first administrative charge. Other, discrete acts were time-barred.

Rizo v. Yovino, 887 F.3d 453, 130 FEP 1437 (9th Cir. 2018) (en banc). Panel: REINHARDT, Thomas, Fletcher, Paez, Berzon, Christen (MCKEOWN, Murguia, concurring) (CALLAHAN, Tallman, concurring) (WATFORD, concurring). Claims on Appeal: Equal Pay Act. Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: "[A]ny other factor other than sex" is limited to legitimate, job-related factors such as a prospective employee's experience, educational background, ability, or prior job performance." Thus, "[p]rior salary, whether considered alone or with other factors, is not job related and thus does not fall within an exception to the Act that allows employers to pay disparate wages."

Perez v. City of Roseville, 882 F.3d 843, 130 FEP 1205 (9th Cir. 2018). Panel: REINHARDT, Molloy [TASHIMA, concurring]. Claims on Appeal: Title VII and § 1983 termination (sex). Due process, privacy and intimate association claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Evidence, taken in the light most favorable to plaintiff, showed that the defendants' disapproval of her extramarital affair, rather than gender discrimination, was the cause of her termination.

Clemens v. Qwest Corp., 874 F.3d 1113, 130 FEP 908 (9th Cir. 2017). Panel: OWENS, Wardlaw, Clifton. Claims on Appeal: Title VII discrimination (race) and retaliation. Disposition Below: Judgment after a jury trial (over $157,000 for lost wages and benefits, plus $275,000 emotional distress and $100,000 in punitive damages, reduced to $300,000 cap) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Agreeing with the Third, Seventh, and Tenth Circuits, court holds that in Title VII cases, district courts have discretion to award the equitable relief of a "gross-up" adjustment to compensate for increased income-tax liability resulting from a plaintiff's receipt of a back-pay award in one lump sum.

Flores v. City of Westminster, 873 F.3d 739 (9th Cir. 2017). Panel: FARRIS, Callahan, Owens. Claims on Appeal: § 1981 and Calif. state law discrimination and retaliation. Disposition Below: Judgment after a jury trial ($3,341,000.00 in general and punitive damages, $3,285,673.00 in attorney fees, $40,028.49 in expert fees, and $18,684.12 in costs) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Jury could have found (under state law) that removal from duty list, negative Supervisor's Log entries, and received his first written reprimand were adverse employment actions, because such actions would have been reviewed as part of any decision whether or not to award officer special assignments or promote him, and would have harmed his prospects. Jury could also find that five-month period between protected activity and adverse action was temporally close enough to support inference of causation. Series of adverse actions also permits inference of causation. Employer also offered no reason for excluding plaintiff from duty list. Not necessarily double-recovery for jury to award compensatory damages both against superior officer defendants and city, where other city employees were allegedly involved in some of the discriminatory or retaliatory activity. In a matter of first impression, court holds that California law should not be read to bar public employees from bringing § 1981 claims in cases such as this one, just because employment relationship is also governed by statute rather than just contract. Individual liability permissible under § 1981. District court did not err in admitting the following evidence: 1) evidence of events that occurred outside of the statute of limitations period; 2) evidence of racial slurs used within the Department; 3) evidence of Sergeant Mize's alleged unprofessional emails to women and involvement with a co-worker and a bar employee; 4) evidence of Officer Turner's involvement with a bar employee; and (5) evidence of a prior discrimination claim from 1997 involving a "Whites Only" sign posted in the police station. Delivering a USERRA instruction to the jury was not prejudicial error, even though plaintiff did not allege USERRA. No record of inconsistent jury forms; moreover, defendants waived any objection to the jury's allegedly inconsistent answers when they failed to object before the jury was discharged. No new trial required on the grounds that the jury verdict finding them individually liable was against the clear weight of the evidence and that Plaintiffs failed to present evidence of malicious conduct sufficient to support punitive damages. Evidence of individual culpability included that one defendant oversaw multiple potentially retaliatory investigations against plaintiff and imposed a ten-hour unpaid suspension, and another defendant opened a retaliatory investigation (supposedly for not responding to a domestic violence incident) while not opening investigations on others. Evidence of discriminatory motive including defendant who repeatedly promoted white officers with serious disciplinary histories, as well as less qualified white officers, over plaintiffs; plus defendant removed plaintiff from SWAT and Honor Guard, stopped assigning him FTO trainees, and would not give him a position on the Patrol Rifle Officer team. A second defendant allegedly felt "sandbagged" by discrimination complaint, and thereafter refused to overturn the written reprimand plaintiff received for his discourteous remark to a teenager. Third defendant instigated retaliatory investigations and removed plaintiff from duty list. Ratio of 4:1 punitive and compensatory damages met due process standard. One defendant who died before trial should have been replaced by his estate.

Alamillo v. BNSF Railway Co., 869 F.3d 916, 33 A.D. Cases 1025 (9th Cir. 2017). Panel: FEINERMAN, M. Smith, N.R. Smith. Claims on Appeal: 1. Cal. state law termination (disability). 2. Cal. state law reasonable accommodation. Disposition Below: 1. Summary judgment [defendant] 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No genuine dispute of material fact that obstructive sleep apnea was "a substantial motivating reason for" plaintiff's termination, where employer was unaware that alleged condition was causing plaintiff's attendance problems, and plaintiff adduced no evidence that condition caused the particular missed calls at issue. Alternatively, no pretext where employer's reason for firing - history of attendance violations, which culminated in two missed calls - was amply supported, and employer even attempted to make allowance because of the alleged disability. Also plaintiff easily could have taken steps that would have allowed him to appear for work despite his disability (exercising his option to work a job with regular hours; checking the electronic job board every day; setting his alarm for 5:00 a.m.; asking his wife to wake him up if his phone rang while he was sleeping; or providing BNSF with a landline or pager number to use as a back-up if he did not answer his cell phone). 2. No reasonable accommodations were proposed. One accommodation - allowing a shift change - had already been granted, while giving plaintiff a "second-chance" is not an accommodation as a matter of law. Because no accommodation was possible, there is no claim for failure of the interactive process, either.

Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139, 130 FEP 632 (9th Cir. 2017). Panel: ZOUHARY, Berzon, Nguyen. Claims on Appeal: Cal. law termination (age). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: For purpose of proving prima facie case, plaintiff need not show that he was "replaced" by younger employee in reduction in force (RIF). Inference may be derived by demonstrating that an "employer had a continuing need for [the plaintiff's] skills and services in that [his] various duties were still being performed." Summary judgment affirmed on ground that plaintiff presented no genuine issue on three reasons employer proffered for termination (plaintiff's relatively high salary, not a revenue generating job, other departments were understaffed). No duty to transfer employee out; employer's general guidelines for RIFs merely provide that qualified employees may apply for transfer to available positions. Argument that employer engaged in "misrepresentations" rebutted by testimony that employer believed other staff could assume plaintiff's duties, considered the performance and disciplinary history of all twenty-nine managers, and relied on their own perceptions about guest interaction and impact, rather than on customer survey data. Alleged deviation in RIF procedure does not constitute "specific" and "substantial" evidence of a discriminatory motive. "Considering the context of this case-the lost profits during the economic downturn, a series of layoffs over several years, the overall age of the workforce, the fact that Merrick survived previous RIFs despite having then also been a member of a protected class, and the business reasons for selecting his position for elimination-'the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory.'"

Bayer v. Neiman Marcus Group, Inc., 861 F.3d 853 (9th Cir. 2017). Panel: PLATT, Fletcher, Rawlinson. Claims on Appeal: ADA interference. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: For claims brought under § 12203(b), the ADA adopts by reference (42 U.S.C. § 12117) the equitable and declaratory remedies available under Title VII, 42 U.S.C. § 2000e-4 to -9. "[T]he parties agree[d]" under prevailing circuit law "that the district court had the power to award Bayer only equitable remedies." 1. Injunctive Relief: Plaintiff conceded that because the arbitration agreement was enforceable against him, there was no basis for prospective injunctive relief. He argued that the district court could order the employer to place a letter in his personnel file, should he ever return to work there, but he "provided no evidence to indicate Neiman Marcus could reasonably be expected to attempt to enforce the arbitration." And as a former employee who was not seeking reinstatement, plaintiff lacked standing to seek a broad systemic injunction against future interference. 2. Monetary Relief: Any monetary relief that plaintiff sought "on the ory that concrete financial losses [such as uncompensated medical expenses] he suffered as a consequence of [the employer's] allegedly unlawful conduct should rightly be restored to him" was a claim for legal, not equitable, relief and could not be awarded under 42 U.S.C. § 12117. 3. Declaratory Judgment: There being no future conduct to address, there was no basis for declaratory judgment. "[A] declaratory judgment merely adjudicating past violations of federal law - as opposed to continuing or future violations of federal law - is not an appropriate exercise of federal jurisdiction." 4. Nominal Damages: Panel holds that nominal-damages claim was preserved by a general "claim for damages and a general prayer for such other relief as the district court deemed proper," and that the defendant was not prejudiced by the issue emerging for the first time at summary judgment. Noting split of circuits on whether nominal damages could be equitable under 42 U.S.C. § 5000e-5. The Ninth Circuit joins the majority view, holding that such relief under Title VII and the ADA serves a different function from legal relief. "[N]ominal damages are divorced from any compensatory purpose." They are awarded singularly to vindicate rights. "Particularly when a statute provides for the award of court costs to the prevailing party, a court may award nominal damages to avoid ordering the plaintiff to pay court costs and ensure the cost burden is on the defendant." Accordingly, a claim for nominal damages is enough to prevent dismissal on grounds of mootness.

Guido v. Mount Lemmon Fire Dist., 859 F.3d 1168, 130 FEP 336 (9th Cir.  2017). Panel: O'SCANNLAIN, Gould, Smith. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under 29 U.S.C. § 630, a political subdivision of a State need not have twenty or more employees in order to qualify as an employer subject to the requirements of the ADEA (noting split in circuits).

EEOC v. McLane Co., Inc., 857 F.3d 813, 130 FEP 176 (9th Cir. 2017). Panel: WATFORD, Wallace, Smith. Claims on Appeal: ADEA EEOC subpoena enforcement, 42 U.S.C. § 2000e-9. Disposition Below: Subpoena denied in part [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: On remand from EEOC v. McLane Co., 137 S. Ct. 1159 (2017), district court committed abuse of discretion when it held that the pedigree information is not relevant to the EEOC's investigation.

Rizo v. Yovino, 854 F.3d 1161, 130 FEP 113 (9th Cir. 2017). Panel: ADELMAN, Tashima, Hurwitz. Claims on Appeal: Equal Pay Act. Disposition Below: Denial of summary judgment [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Declining to overrule Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982), which held that prior salary can be a factor other than sex, provided that the employer shows that prior salary "effectuate[s] some business policy" and the employer uses prior salary "reasonably in light of [its] stated purpose as well as its other practices." Panel vacates district court order denying county's motion for summary judgment and remand for further proceedings. On remand, district court must evaluate the four business reasons offered by the County and determine whether the County used prior salary "reasonably."

Santillan v. USA Waste of Calif., 853 F.3d 1035, 130 FEP 61 (9th Cir. 2017). Panel: PREGERSON, Nguyen, Owens. Claims on Appeal: Calif. state law termination (age). State tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred when it evaluated plaintiff's age discrimination theory without admitting events occurring before employer fired him for the first time in 2011. Plaintiff made out prima facie case: he was one of five older Spanish-speaking employees fired or suspended once new supervisor was assigned as route manager, and there was a 13-year gap between plaintiff and his replacement. Moreover, the employer failed to advance a legitimate, non-discriminatory reason for discharge. Proffered explanation - that his "reinstatement was contingent, in part, upon providing proof of [his] legal right to work in the United States within three days of hire, as required by the Immigration Control and Reform Act of 1986, [sic] [and] [the] Settlement Agreement" - was wrong as a matter of law and public policy. (1) The Immigration Control and Reform Act of 1986 exempts plaintiff from the proof of employment eligibility that employer demanded; and (2) making plaintiff's reinstatement contingent upon such proof by contract would violate California public policy and unenforceable.

Zetwick v. County of Yolo, 850 F.3d 436, 129 FEP 1657 (9th Cir. 2017). Panel: BENNETT, Graber, Murgia. Claims on Appeal: Title VII and Cal. state law harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred by categorically holding that "hugs and kisses on the cheek" are "common workplace behavior" and not actionable as harassment. Such behavior may constitute harassment depending, among other things, on "the number of times or the period of time" the events occur. The district court also erred by demanding proof that the behavior was both severe and pervasive, rather than severe or pervasive. Jury could find sheriff's conduct "out of proportion to 'ordinary workplace socializing'" and "abusive." Panel faults district court's effort to reduce the number of hugs to a mathematical formula, i.e., "simple math indicates that Plaintiff experienced this conduct an average of around seven or eight times per year for a couple [of] seconds on each occurrence." Also failed to factor in "the potentially greater impact of harassment from a supervisor and, indeed, the highest ranking officer in the department." It was error "for the district court to disregard Zetwick's evidence that [sheriff] hugged and kissed other women," because it was probative of his "general attitude of disrespect toward his female employees, and his sexual objectification of them." Regarding the "because of sex" requirement, the county asserted "that the record shows that Prieto also hugged men, but they do not suggest that [sheriff] hugged men as often as he hugged women." And the record revealed "'qualitative and quantitative differences' in the hugging conduct toward the two genders."

Mayes v. WinCo Holdings, Inc., 846 F.3d 1274, 129 FEP 1565 (9th Cir. 2017). Panel: CHRISTEN, McKeown, Tallman. Claims on Appeal: Title VII and Idaho state law termination (sex). COBRA and wage-and-hour claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine disputes of material fact on the veracity and motives of company management. The panel holds that there was both direct and indirect evidence of improper bias. The direct evidence included several statements by Mayes's direct supervisor - herself a woman, named Steen - expressing belief that a man should have the job: "(1) Steen's alleged comment that a man 'would be better' leading the safety committee; (2) Steen's alleged comment that she did not like 'a girl' running the freight crew; and (3) Steen's alleged criticism of Mayes, but not her male counterpart, for leaving work early to care for her children." The comments were not "stray remarks" because "reasonable jurors could decide that Steen's comments, including the alleged comment that a man 'would be better' as chair of the safety committee, demonstrate Steen's overt hostility to having women in leadership roles." In sum, "Mayes's direct evidence alone is sufficient to defeat summary judgment." This holding was supported by admissions (in discovery and in unemployment hearing testimony) that Steen participated in the firing. "[T]he animus of a supervisor can affect an employment decision if the supervisor 'influenced or participated in the decision making process.'" The panel cites the "cat's paw" case, Staub v. Proctor Hosp., 562 U.S. 411 (2011). The store tried to rely on the loss-prevention investigation as an intervening cause of the termination, but crossed itself up by presenting no evidence of the manager who made the final decision: "... no one at WinCo admitted to making the decision to fire Mayes, and it is impossible to know who believed what at the time Mayes was fired." The inference of discrimination "is further bolstered by indirect evidence." To begin with, "[m]ultiple employees testified that it was a common, accepted practice-rather than an offense punished by termination-for PICs to take cakes to the break room." Assuming that the jury credited Mayes's testimony, "Mayes could not have stolen a cake that she had permission to take. Nor could management have reasonably thought that Mayes lied about having permission if they knew that PICs were allowed to use stale cakes to motivate employees." Moreover, "Mayes presented evidence that WinCo replaced her with a less qualified male employee" and that Steen was involved in that decision as well.

Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 129 FEP 1571 (9th Cir. 2017). Panel: PREGERSON, Owens [BEA, dissenting]. Claims on Appeal: 1. Title VII, § 1981 and Ore. state law harassment (race). 2. Title VII, § 1981 and Ore. state law discrimination and termination (race). 3. Title VII, § 1981 and Ore. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. Grounds: 1. Genuine disputes of material fact on whether the harassment was severe or pervasive, and whether the employer took adequate action to correct it. Jury could find the accumulation of co-worker's "explicit racial and national origin comments in the workplace" were hostile and derogatory. "Efrain identifies several derogatory remarks that [co-worker] made specifically about Mexicans, including comments about the 'border' that were tinged with racism." Around hunting season, for instance, he reportedly said that "I'm a true believe [sic] that we should close the borders to keep mother f***ers like you from coming up here and killing our elk." Conditions were so objectively severe that employer had to separate the employees. Jury could find employer negligent in responding, allegedly waiting nearly two months after the first verbal complaint to take action and never giving co-worker any kind of formal discipline. 2. Genuine dispute of material fact about whether white employees, unlike plaintiff, were spared termination when they engaged in workplace violations (in particular, co-worker was not terminated for his racial harassment of plaintiff). Although the plaintiff admitted that he left the worksite and refused to return to work, "Roseburg ... conditioned Efrain's employment on his willingness to work with a coworker who had a proven history of repeatedly and persistently harassing Efrain based on his race and national origin." Panel also reverses summary judgment on the disparate treatment of the plaintiff and a white employee on the breaking and searching of lockers. Allegedly, a drug-sniffing dog approached two lockers, those of plaintiff and a white coworker. The company broke into plaintiff's locker. While the "dogs alerted to the locker of a white co-worker," there was no indication that his locker was ever searched, let alone broken into. On remaining allegations of disparate treatment (unequal assignments, extra paperwork, failure to rehire, denial of perqs), the district court correctly held that Efrain did not provide sufficient evidence that those incidents constitute adverse employment actions or that similarly situated employees were treated more favorably. 3. Genuine dispute whether plaintiff's termination was retaliatory. "Efrain's prima facie case is strong, particularly in light of the timing of the termination. Efrain had worked at Roseburg for more than five years, yet he was fired barely one month after making a formal written complaint. Proof of a causal link between Efrain's complaint and his termination-as evidenced by temporal proximity-is certainly relevant to an evaluation of pretext." Relevant that the plaintiff's termination for missing one-and-a-half shifts was widely out of proportion to "Roseburg's benign treatment of [harassing co-worker]."

Matson v. United Parcel Service, Inc., 840 F.3d 1126, 129 FEP 1205 (9th Cir. 2016). Panel: BERZON, Graber, Murguia. Claims on Appeal: Wash. state law harassment (sex). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: State law claim not preempted by LMRA because adjudication of the employee's hostile work environment claim did not require interpretation of a provision of the CBA.

Silwell v. City of Williams, 831 F.3d 1234 (9th Cir. 2016). Panel: FRIEDLAND, Gould [FERNANDEZ, dissenting]. Claims on Appeal: First Amendment claim (not discussed here except for implied repeal). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Retaliation provision of ADEA did not preclude plaintiff's § 1983 First Amendment retaliation claim for participating as witness in age discrimination case against employer.

Garity v. APWU Nat'l Labor Organiz., 828 F.3d 848 (9th Cir. 2016). Panel: BYBEE, Farris, Smith. Claims on Appeal: ADA and Nev. state law discrimination and retaliation. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Failure to establish breach of duty of fair representation against union in first case was not collateral estoppel/issue preclusion of second, ADA claim, because DFR is not essential element of ADA violation by union. No res judicata/claim preclusion where claims could not have been conveniently tried together, "rights and interests" in respective cases were distinct, and plaintiff was denied full and fair opportunity to litigate claim in first case.

Ruiz v. Snohomish County Public Utility District No. 1, 824 F.3d 1161, 129 FEP 273 (9th Cir. 2016). Panel: GRABER, Berzon, Murgia. Claims on Appeal: § 1983 and Cal. state law discrimination (sex). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Earlier dismissal on alternative grounds, where one ground is a lack of jurisdiction, is not res judicata (citing cases from Sixth and Seventh Circuits). For purposes of the motion to dismiss, at least two state-law claims are timely: (1) her claim alleging discriminatory firing in 2010; and (2) a hostile work environment claim founded in part on actions occurring within the limitations period.

Mendoza v. Roman Catholic Archbishop of Los Angeles, 824 F.3d 1148, 32 A.D. Cases 1462 (9th Cir. 2016). Panel: Per curiam (Tashima, Silverman, Graber). Claims on Appeal: ADA failure to rehire. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015), did not change circuit rule that requires a plaintiff who alleges disparate treatment to show that a discriminatory reason more likely than not motivated the defendant. Unlike Title VII, knowledge of a disability is an element of the claim.

Arizona ex rel. Horne v. The Geo Group, 816 F.3d 1189, 128 FEP 1666 (9th Cir. 2016). Panel: CALLAHAN, Reinhardt, Tashima. Claims on Appeal: Title VII and Ariz. state law harassment (sex) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: EEOC and Arizona state agency, in accord with Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015), carried out conciliation duties: furnished the employer with detailed allegations, a written settlement proposal, and a formal conciliation. In any event, the district court erred by dismissing the claims of the 15 women rather than returning them for conciliation (as they did with the five others).Agencies had no obligation to conciliate individually for each claimant, and could instead negotiate on behalf of an identified class. "If the EEOC and the Division were required to pursue individual conciliation on behalf of every aggrieved employee, they would be effectively barred from seeking relief on behalf of any unnamed class members they had yet to identify when they filed their suit." Further, "conciliation requirements do not change depending on whether the EEOC brings a claim under §2000e-5 (a § 706 claim) or §2000e-6 (a § 707 pattern-or-practice claim)." District court erred in holding that the 300-day period for violations reached back from the Reasonable Cause Determination, rather than the filing of the original charge. No unfairness to the employer, because the original charge gave it notice that the sexual assault was not an "isolated act," because it also alleged that the company took no remedial steps and indeed fired the claimant on false charges. With respect to the class, "in an EEOC class action, an aggrieved employee is not required to file a new charge of discrimination if her claim is already encompassed within the Reasonable Cause Determination or if the claim is 'like or reasonably related' to the initial charge." And, as to one claimant who lost on summary judgment, the panel remands holding that there was a genuine dispute of material fact whether the repeated comments and gestures (spanking, bumping, and sexually-charged talk) created a severe or pervasive hostile work environment.

EEOC v. McLean Co., Inc., 804 F.3d 1051, 128 FEP 285 (9th Cir. 2015). Panel: WATFORD, Wallace (SMITH, concurring). Claims on Appeal: ADEA EEOC subpoena enforcement, 42 U.S.C. § 2000e-9. Disposition Below: Subpoena denied in part [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in refusing to compel production of name, Social Security number, last known address, and telephone number of other applicants and employees who took a qualifying strength test; information was relevant to EEOC's investigation because it enables agency to contact other employees and applicants for employment who have taken the test to learn more about their experiences, and assess pattern or practice. Charge is framed in terms general enough to support either a disparate impact or a disparate treatment theory. Panel also vacates part of order denying enforcement of subpoena's request for the reasons for termination of other employees to examine claim of undue burden.

France v. Johnson, 795 F.3d 1170, 127 FEP 1336 (9th Cir. 2015). Panel: GOULD, Silverman, Hurwitz. Claims on Appeal: ADEA promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Panel endorses Seventh Circuit authority holding that an age difference of less than ten years between the plaintiff and the replacements creates a rebuttable presumption that the age difference was insubstantial, absent other evidence of age bias. Plaintiff presented evidence that (1) person who created position expressed his preference for "young, dynamic agents" to staff vacant position, (2) same executive tried to pressure plaintiff into discussions about retirement, and (3) one decision maker expressed preference for younger, less experienced agents. Although agency proffered legitimate, non-discriminatory reason (determined to lack sufficient judgment and leadership), plaintiff presented genuine dispute of material fact regarding pretext. District court erred in holding that biased statements were probative only if they were made by a final decision maker. Comments of "biased subordinate" or outside individual with influence and substantial involvement in the hiring decisions probative under "cat's paw" theory. In this case, comment were made by person who created positions, whose views were deferred to because he would be supervising them, and he made first round of recommendations. Biased comments and attempts to pressure plaintiff on retirement a year earlier thus probative.

Mayo v. PCC Structurals, Inc., 795 F.3d 941, 31 A.D. Cases 1556 (9th Cir. 2015). Panel: OWENS, Smith, Hayes. Claims on Appeal: Ore. state law termination (disability). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Because plaintiff threatened to kill co-workers and management on five occasions, and when asked if he planned to carry out his threats, said that "he couldn't guarantee he wouldn't do that." he was not a "qualified individual" under the Oregon statute. An essential function of almost every job is the ability to appropriately handle stress and interact with others. No need to reach "direct threat" defense.

Ranza v. Nike, Inc.793 F.3d 1059, 127 FEP 1231 (9th Cir. 2015). Panel: FISHER, Paez, Ikuta. Claims on Appeal: Title VII and ADEA termination and retaliation. Disposition Below: Dismissal for lack of personal jurisdiction, FRCP12(b)(2) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No personal jurisdiction over Dutch subsidiary of U.S. company. No general jurisdiction based on 20-27 expatriates working outside of Oregon. No imputing company's Oregon contacts to overseas subsidiary, While recognizing that it is possible to have "reverse" attribution of parent's domestic contacts to foreign subsidiary, in this case the record shows that companies observed respective corporate formalities, that parent's macro-management (on level of budget and general policies) does not create alter ego relationship by itself. Initial failure to name parent in EEOC charge did not constitute failure to meet charge-filing requirement, under exception where unnamed party was on notice of filing and should have anticipated that claimant would name it in later suit. Nevertheless, suit against parent properly dismissed on grounds of forum non conveniens, where events occurred in The Netherlands, most evidence is located there, plaintiff resides there, parent was amenable to process there, dispute was already submitted to Dutch agency, and administrative procedure in The Netherlands offered a satisfactory remedy.

Ashby v. Archstone Property Mgt., Inc., 785 F.3d 1320, 126 FEP 1789 (9th Cir. 2015). Panel: BEA, Bybee, Christen. Claims on Appeal: Title VII and Cal. state law termination. Disposition Below: Motion to compel arbitration denied[plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Arbitration clause that was openly described in employee handbook and acknowledged by employee with signature was enforceable.

Nigro v. Sears. Roebuck & Co., 784 F.3d 495, 31 A.D. Cases 778 (9th Cir. 2015). Panel: GOULD, Reinhardt, Gettleman. Claims on Appeal: Cal. state law termination (disability). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in failing to admit statement by manager quoted in employee's declaration that "[i]f you're going to stick with being sick, it's not helping your situation. It is what it is. You're not getting paid, and you're not going to be accommodated." Statement attributed to manager should be admissible as a party admission under FRE801(d)(2)(D), and it is not a valid reason to exclude that the declaration was "self serving." District court can disregard a self-serving declaration that states only conclusions and not facts that would be admissible evidence. But here, plaintiff related statements made to him both in person and over the telephone. His testimony was based on personal knowledge, legally relevant, and internally consistent. Evidence of failure to accommodate included evidence that manager did not approve this accommodation and required employee to arrive on time, at 6:00 A.M., "every day." Because employee's requests for accommodations in May and June 2009 put employer on notice that employee needed accommodations, a reasonable jury could find that employer had an obligation to engage in the interactive process required by state law and failed to do so.

Ali v. Rogers, 780 F.3d 1229, 126 FEP 935 (9th Cir. 2015). Panel: SILVERMAN, Schroeder, Garbus. Claims on Appeal: Title VII termination (national origin). Disposition Below: Dismissed for lack of jurisdiction, FRCP12(b)(1) [defendant]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Because plaintiff seaman's claims at least in part could have been brought as a "civil action in admiralty," pursuant to the Suits in Admiralty Act and Public Vessels Act, it should have been brought against the United States in admiralty.

State of Arizona v. ASARCO LLC, 773 F.3d 1050, 125 FEP 753 (9th Cir. 2014) (en banc). Panel: THOMAS, Reinhardt, Kozinski, Silverman, Gould, Berzon, Clifton, Smith, Murguia, Christen, Nguyen. Claims on Appeal: Title VII sex harassment. Disposition Below: Judgment after a jury trial ($1 nominal, $868,750 punitive - capped at $300,000, $350,902 fees and costs) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Holds that three guideposts for evaluating excessiveness of punitive damages under BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996), are essentially unnecessary for evaluating a capped award under Title VII governed by 42 U.S.C. § 1981a(b)(3)(D). Court also affirms that there was sufficient evidence of willfulness to support the award, that the district court did not err in admitting evidence of sexually explicit graffiti similar to what plaintiff Aguilar saw, and the attorney's fee and cost award of $350,902.75 was reasonable.

Curley v. City of North Las Vegas, 772 F.3d 629, 30 A.D. Cases 1811 (9th Cir. 2014). Panel: FRIEDLAND, Schroeder, Owens. Claims on Appeal: ADA termination and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute of material fact that employer terminated plaintiff because of his history of threatening coworkers, nonperformance of duties, conducting personal business at work, and disparaging employer. New information learned about employee's misconduct after he filed EEOC charge defeats inference from temporal proximity.

EEOC v. Peabody Western Coal Co., 773 F.3d 977, 125 FEP 286 (9th Cir. 2014). Panel: W. FLETCHER, Graber, Paez. Claims on Appeal: Title VII hiring (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Hiring rule favoring Navajos expresses a political tribal affiliation, rather than nationality, preference. Agency also waived records-keeping claim.

Weaving v. City of Hillsboro, 763 F.3d 1106, 30 A.D. Cases 673 (9th Cir. 2014). Panel: W. FLETCHER, Silverman [CALLAHAN, dissenting]. Claims on Appeal: ADA termination. Disposition Below: Judgment after a jury trial ($562,950 for back pay and front pay, $75,000 compensatory, $139,712 in attorney's fees) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: On record at trial, ADHD did not qualify as a "disability" under the ADA because it was not shown to substantially limit plaintiff in the major life activities of working and interacting with others. Regarding working, record established plaintiff was a skilled police officer, with promotions and assignments to high-level duties. Regarding interacting with others, interpersonal problems do not amount to a substantial impairment of the ability to interact with others within the meaning of the ADA. While ADHD may well have limited plaintiff's ability to get along with others, that is not the same as a substantial limitation on the ability to interact with others. One who is able to communicate with others, though his communications may at times be offensive, "inappropriate, ineffective, or unsuccessful," is not substantially limited in his ability to interact with others within the meaning of the ADA.

Ambat v. City and Cty. of San Francisco, 757 F.3d 1017 (9th Cir. 2014). Panel: MURGUIA, Trott, Thomas. Claims on Appeal: Title VII job assignment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Record presented a genuine issue of material fact about whether city made gender a bona fide occupational qualification (BFOQ), 42 U.S.C. § 2000e-2(e)(1), for guarding women inmates. Men were permitted in some instances to work with women inmates in the medical unit. City stressed risk of sexual assault/misconduct, risk that women will blackmail male guards with false reports of misconduct, women's privacy and rehabilitation. Men and women sued, claiming that staffing rule resulted in loss of control over overtime, loss of promotional opportunities, and reduced choice of shifts. Genuine dispute of material fact whether sheriff engaged in "reasoned decision-making process" in implementing same-sex guard policy that would warrant deference. District court relied on sheriff's experience alone, rather than considering the process followed. Sheriff did not make significant effort to acquaint himself with correctional experience or research on topic. On the merits, defendant did not establish threat to women inmates as a matter of fact. Experience of allegations of misconduct did not establish that men guards were generally prone to such behavior. Also no evidence that "all or substantially all" men were apt to be the victims of false allegations. There were also methods to safeguard women inmates' privacy. Award of attorney's fees for settling some claims in amount of $127,447 and $8925 respectively. Retaliation claim of one plaintiff properly dismissed where record established that he disseminated defamatory remarks about several individuals.

Stockwell v. City and Cty. of San Francisco, 749 F.3d 1107, 122 FEP 795 (9th Cir. 2014). Panel: BERZON, Wallace, Fisher. Claims on Appeal: ADEA and Calif. state law promotion, disparate impact. Disposition Below: Class certification denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiffs at or over age 40 claimed that abandonment of pen-and-paper test that older employees did well on had disparate impact on promotional opportunities. District court erred by considering merits rather than the pertinent commonality standard under FRCP23(a)(2). Do not need to prove that plaintiffs will prevail on common claim. Under FRCP23(f), panel cannot consider merits even as alternative basis for affirming decision not to certify class. Where there was single, well enunciated uniform policy (abandoning test in favor of another hiring list), it presented common question for class. Any statistical showing would be relevant to entire class.

Dzakula v. McHugh, 746 F.3d 399, 121 FEP 636 (9th Cir. 2014). Panel: GRABER, Hawkins, Christen. Claims on Appeal: Employment discrimination claim. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee judicially stopped from pursuing discrimination claim by not listing in her Chapter 7 bankruptcy petition; employee offered no explanation by way of declaration of the timing of amendment to petition to add claim after its omission was discovered.

Muniz v. United Parcel Service, Inc, 738 F.3d 214, 120 FEP 1549 (9th Cir. 2013). Panel: SINGLETON, O'Scannlain [M. SMITH, dissenting in part]. Claims on Appeal: Calif. FEHA demotion (sex, age) and retaliation. Disposition Below: Fee award of $697,971.80 [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: No abuse of discretion in award, despite relatively low damages ($27,280). District court did err in awarding fees to one paralegal based entirely on hearsay testimony of employer that he observed paralegal reconstruct her hours. Award of lodestar amount (reduced substantially because of poor recordkeeping) not abuse of discretion. Where hours devoted to unsuccessful claims were not easily segregated, district court did not abuse discretion in not taking further reductions on this ground. Jury award was not nominal or minimal per Farrar v. Hobby. Ten-percent reduction adequate to cover limited success and possible inflation of the fee request.

Arizona v. Asarco, LLC, 733 F.3d 882 (9th Cir. 2013). Panel: O'SCANNLAIN, Singleton [HURWITZ, dissenting in part]. Claims on Appeal: Title VII harassment (sex). Disposition Below: Judgment after a jury trial ($868,750 punitive damages, $1 nominal damages; capped at $300,000) [plaintiff]. Outcome on Appeal: Reversed [defendant]. GroundsBMW of North America v. Gore standards apply to review of punitive damage award under Title VII, even after application of cap. Court affirms district court's findings to support award, but reduces award to $125,000. Applying factor 1 of reprehensibility, court holds that sex harassment is comparable to physical injury, there was ample of evidence of reckless indifference that included daily harassment, an employee stands in a position of financial vulnerability to her employer, and harassment was persistent rather than sporadic. Court holds though that 300,000:1 ratio was constitutionally excessive. Notes split in circuits about whether excessiveness factor applies to capped damages in Title VII. Also, considering third factor (comparison to other criminal/civil penalties), while the cap is a benchmark for appropriate award, bottom-line ratio is vastly out of range with other cases - highest court could locate was 125,000:1. Court directs new trial unless plaintiff accepts remittitur.

Castle v. Eurofresh, Inc., 731 F.3d 901, 28 A.D. Cases 941 (9th Cir. 2013). Panel: SMITH, Tallman [BERZON, concurring]. Claims on Appeal: 1. ADA Title I, Ariz. State law and Rehabilitation Act reasonable accommodation (against contractor). 2. ADA Title II, Ariz. State law and Rehabilitation Act reasonable accommodation (against state). Disposition Below: 1. Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Eurofresh, a prison contractor who used convict labor force, not "employer" of employees for purposes of ADA, and not recipient of federal funds for Rehabilitation Act. 2. State defendants were proper parties that (potentially) were vicariously liable for Eurofresh's failure to accommodate prisoner's disabilities.

Green v. United Steel Workers., 728 F.3d 1107, 119 FEP 1501 (9th Cir. 2013). Panel: TASHIMA, Nelson, Callahan. Claims on Appeal: Title VII, § 1981, and Wash. state law discrimination and retaliation (race, sex). LMRDA and LMRA claims (not discussed here). Disposition Below: Judgment after a bench trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Not clearly erroneous to find that union was motivated by intra-union factional rivalry, rather than race or sex.

Smith v. Clark Co. school Dist., 727 F.3d 950, 28 A.D. Cases 717 (9th Cir. 2013). Panel: GOULD, Fletcher, Christen. Claims on Appeal: Sex discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), it was possible for an employee to qualify for disability benefits but still be "qualified" to work. Welfare benefit plans - unlike the ADA - often do not consider whether a person can work with accommodations. There are also circumstances where an employee may honestly avers that he or she cannot work when they apply for benefits, and then recovers; indeed, the forms ordinarily anticipate that the employee will return to work. Thus, although a plaintiff's arguably conflicting statements in applying for benefits about her fitness to work may be admissible at trial, for an employer to argue that the employee was not "qualified," the panel holds that it is the jury and not the court decides whether these are reconcilable. Accordingly, the contradictory statements may be admitted in evidence and weighed by the jury, but they should not be preclusive of a claim at the summary-judgment stage.

Ah Quin v. County of Kauai Dep't of Transportation, No. 10-16000 (9th Cir. July 24, 2013). Panel: GRABER, Christen [BYBEE, dissenting]. Claims on Appeal: Sex discrimination. Disposition Below:  Summary judgment  [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in imposing judicial estoppel where employ initially failed to identify discrimination claim in Chapter 7 petition, then later amended to include it. "[W]here, as here, the plaintiff-debtor reopens bankruptcy proceedings, corrects her initial error, and allows the bankruptcy court to re-process the bankruptcy with the full and correct information, presumption of deceit" is rebutted.

Westendorf v. West Coast Contractors of Nevada, Inc., 712 F.3d 417, 117 FEP 1417 (9th Cir. 2013). Panel: ARNOLD, Bybee [RAWLINSON, dissenting in part]. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Harassment insufficiently severe or pervasive when, over a three-month period, male employees had made occasional demeaning remarks to her - for instance, telling her that she should wear a "French maid's costume (or maid's uniform)" and clean the trailer - and also various crude references to women's breast sizes, the use of tampons, and orgasms. Only about five occasions were directed at the employee, and her work did not objectively suffer. 2. Genuine issue of material fact about whether employee was terminated in retaliation for complaining about harassment. Record was at least ambiguous about whether the protected activity (complaining about harassment) commenced only as of July 29, 2008 or was based on her earlier complaints. Because the only explanation that the defendant offered on retaliation claim is that the employee quit, and was not fired, record presented a genuine issue of material fact about whether her separation from employment was motivated by retaliation. Even if company had proffered a reason for discharging employee (failing to file a paper in a binder as manager requested), her prima facie case and related inferences might well support a finding of pretext, especially since she had no record of insubordination until she complained about sexual harassment.

Lawler v. Montblanc N.A. LLC, 704 F.3d 1235, 27 A.D. Cases 545 (9th Cir. 2013). Panel: DUFFY, Gould, Smith. Claim on Appeal: Cal state law disability discrimination and retaliation. State law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee not able to perform essential functions of a boutique manager: she admitted to being completely disabled and out of the job market. Inability-to-perform also support reason for employee's termination, and employee cannot establish that this pretext for retaliation.

Sheppard v. Evans and Assoc., 694 F.3d 1045, 115 FEP 1665 (9th Cir. 2012). Panel: PREGERSON, B. Fletcher, Walter. Claim on Appeal: ADEA and Ore. state law termination. FMLA claim (not discussed here). Disposition Below: Dismissed for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Notwithstanding Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), two-and-a-half page complaint that set forth basic prima facie meets Rule 8 requirements, upholding Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).

 Bullock v. Berrien, 688 F.3d 613, 26 A.D. Cases 1046 (9th Cir. 2012). Panel: W. FLETCHER, Kozinski, Reinhardt. Claim on Appeal: Rehabilitation Act claim. Disposition Below: Dismissed for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under 42 U.S.C. § 2000e-16(c) and 29 C.F.R. §§ 1614.407, .409, an aggrieved employee subject to the procedural rules of Title VII exhausts her administrative remedies by filing a formal complaint for adjudication by an ALJ.

Okwu v. McKim, 682 F.3d 841, 26 AD Cases 513 (7th Cir. 2012). Panel: CLIFTON, Reinhardt, Smith. Claim on Appeal: § 1983 hiring. Disposition Below: Dismissed for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff may not sue individual officers under § 1983 for violations of ADA owing to inclusion of comprehensive remedial scheme under Title I. No claim under Equal Protection clause - decision not to rehire employee rationally based on decision that employee's psychological condition prevented her from returning to work. "Class of one" theory does not apply to public employment.

Jahn v. County of Orange, 682 F.3d 1126 (9th Cir. 2012). Panel: LYNN, Pregerson, Nelson. Claim on Appeal: Calif. state law benefits (age). Constitutional and contract claims [not discussed here]. Disposition Below: Judgment on the pleadings [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Judgment should not have been granted on timing grounds; single-filing rule permits piggybacking on state administrative charge. administrative charge need not include the words "class" or "on behalf of others" to support piggybacking. Plaintiffs are not seeking to piggyback on a charge of another retiree in a different lawsuit - all are proceeding collectively in the same action.

Schechner v. KPIX-TV, 686 F.3d 1018, 115 FEP 307 (9th Cir. 2012). Panel: B. FLETCHER, Noonan, Paez. Claim: Calif. state law termination (age, sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although employees could establish prima facie case by evidence of stark difference between employees who were terminated and preserved in RIF (without having to account for employer's non-discriminatory explanation), employees here lost on alternative ground that they did not prove that employer's reason (employees fired based on date of contract expiration) was a pretext for discrimination. Moreover, same-actor inference applied.

Wood v. City of San Diego, 678 F.3d 1075, 114 FEP 1552 (9th Cir. 2012). Panel: B. FLETCHER, Kleinfeld, Smith. Claim:  1. Title VII benefits (sex), disparate treatment. 2. Title VII benefits (sex), disparate impact. Disposition Below: 1. Dismissed for failure to state a claim, FRCP 12(b)(6) [defendant]. 2. Dismissed for lack of subject-matter jurisdiction, FRCP 12(b)(1) [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Benefit plan that awarded greater benefits to married retirees who elect the surviving spouse option than single retirees not plead to deliberately discriminate on the basis of sex. The city being aware that men on average benefitted from this arrangement more than women does not establish intentional discrimination. No abuse of discretion to give plaintiff another opportunity to amend the complaint seven years after case was filed. 2. District court held that employee failed to establish standing because she could not prove that the that the compensation actually paid to her was less than she would have received if married. Ninth Circuit affirms on alternative ground that facially-neutral pension plan under Manhart is not challengeable for disparate impact, because all such plans pay unequal benefits by sex.

Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 26 AD Cases 11 (9th Cir. 2012). Panel:MCKEOWN, Guy, Tallman. Claim: ADA reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Neo-natal nurse suffering chronic pain from fibromyalgia failed to establish that hospital failed to reasonably accommodate her with a flexible schedule. Employee was not "qualified individual" because she did not meet the essential function of regular, punctual attendance, especially where her work involved critical care issues. Proposed accommodation for indefinite unscheduled absences would essentially excuse the employee from an essential function.

White v. City of Pasadena, 671 F.3d 918, 25 A.D. Cases 1185 (9th Cir. 2012). Panel: IKUTA, Canby, Gould. Claim: § 1983 and Cal. state law harassment, discrimination and retaliation. Disposition Below: Dismissed for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Judicially reviewed award by City Manager upholding just cause for termination of city employee (for attempting to commit suicide) and jury verdict for defense in separate state claim for discrimination and harassment was issue preclusive of claim that employee suffered discrimination or retaliation based on perceived disabilities, where prior cases resolved question of motive for firing and absence of discriminatory or retaliatory motive.

Shelley v. Geren, 666 F.3d 599, 114 FEP 303 (9th Cir. 2012). Panel: WILKEN, B. Fletcher [BYBEE, dissenting in part]. Claim: ADEA promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff administratively exhausted his claim under 29 C.F.R. §§ 1614.103 and 1614.105(a)(1). Although some of the events making up the claim - the temporary-hiring phase - occurred more than 45 days before Shelley finally complained to an EEO counselor, as required for federal-sector employees, "the decisions were not discrete employment actions, but were part of a single, two-step, hiring process." Moreover, by complaining about the later, permanent-hiring phase, employee preserved the like-or-related earlier temporary-hiring claim. District court erred in holding that Gross abrogated the standard for proving age discrimination and imposed a higher standard of causation; an employee can still avoid summary judgment by resort to the burden-shifting method of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Employee met the prima facie McDonnell Douglas standard - Shelley "was fifty-four at the relevant time, he was qualified for both the temporary and the permanent positions, he was denied both positions, and both went to a substantially younger candidate" and raised a genuine issue of material fact that the agency's reason for preferring younger candidate was a pretext for age discrimination. Direct evidence of bias presented by fact that two panel members on "inquired about the projected retirement dates for employees in the contracting divisions during the hiring period for the 120-day and permanent positions. A fact-finder could infer from this that they considered age and projected retirement relevant to the hiring decision." Moreover, there was creditable indirect evidence that employee was clearly more qualified than younger candidate: significantly more years of work experience related to contracting, and more experience employed in the Corps; greater experience in procurement; better supervisory and educational background. A disputed fact issue was also presented by the agency's defense that the five other finalists for the permanent position were also protected-age employees: "Stacking the interview pool with older candidates does not immunize the decision to hire a younger one."

Johnson v. Board of Trustees, 666 F.3d 561 (9th Cir. 2011). Panel: W. FLETCHER, Hug, Reavley. Claim: ADA and Idaho state law reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Failure to meet job licensing prerequisite for teaching rendered employee not a "qualified person with a disability. Under ADA and regulations, employer has no obligation to provide reasonable accommodations to enable employee to meet job prerequisites (citing EEOC Guidance 29 C.F.R. § 1630.2(m)). Provided that there is no evidence that the licensing criteria itself is suspect (either under disparate treatment or impact) under the law, the failure to meet that standard does not create duty to accommodate.

Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 113 FEP 609 (9th Cir. 2011). Panel: W. FLETCHER, Hug, Reavley. Claim: Cal. state law termination (age). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine issue of material fact regarding pretext. While plaintiff committed several work-rule violations (giving a gratuity to one household, failing to keep a map of her destination, misrecording the address of one Nielsen household), record presented evidence that to ther younger recruiters (ages 37, 39 and 42) also had disciplinary records but kept their jobs - and one possibly was not disciplined at all. Plaintiff not offered opportunity to be on Performance Improvement Plan, while younger recruiters were not fired in spite of being placed on a PIP. Younger employees were comparable because employer itself identified the other recruiters' violations as similar to Earl's. The company produced evidence of these violations in response to Earl's discovery request for information about other recruiters whom the company disciplined for "violating the same company policies and procedures." All violations concern the proper collection and verification of household information in order to ensure accurate data. That the plaintiff and younger recruiters were not managed by the same supervisor, and did not work at the same facility, did not rob the younger employees' circumstances of probative value. The panel cited other evidence as well, tending to make age a more likely reason for the decision. Notably, "[i]n the months before and after Earl's termination, Nielsen hired five new recruiters for her region: four in their 20s, and one in his early 30s. One of the new recruiters filled the position vacated by Earl. Nielsen paid the newly hired recruiters a salary less than half Earl's salary." 

Lopez v. Pacific Maritime Assoc., 657 F.3d 762, 25 AD Cases 443 (9th Cir. 2011). Panel: GRABER, Ripple [PREGERSON, dissenting in part] . Claims on Appeal: 1. ADA and Cal. state law apprenticeship. 2. ADA and Cal. state law disparate impact. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. One-strike rule for refusing to admit (to apprentice program) persons who flunk single drug test not facially discriminatory because it applies to all, disabled and non-disabled, who failed test. Also no record that test policy was adopted intentionally to screen out recovering and recovered addicts. Finally, no evidence that employer knew about applicant's addition status before making decision to deny him entry to program. 2. Applicant failed to present statistical or anecdotal evidence that policy tended to screen out recovering or recovered drug addicts. Plaintiff's expert misdefined protected group, in affidavit, as employees who were recovered or recovering addicts who previously applied to defendant and were rejected because of failing the first test.

Ellis v. Costco Wholesale Corp., 657 F.3d 970, 113 FEP 496 (9th Cir. 2011). Panel: N.R.SMITH, Gould, Clifton. Claims on Appeal: Title VII pattern-or-practice promotion. Disposition Below: Class certification [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Because at least one named plaintiff (a current Assistant General Manager, or AGM) alleges a concrete injury that is both directly traceable to defendant's allegedly discriminatory practices and is redressable by both injunctive relief and monetary damages, the proposed class representative has standing. Under Rule 23(a), district court failed to conduct required "rigorous analysis" to determine whether there were common questions of law or fact among the class members' claims. Question of commonality overlaps with claim that defendant's system of promotion and corporate culture constitutes a pattern or practice of discrimination. District court erred in holding that inquiry into merits was discretionary. Also, district court erred in essentially holding that its inquiry into commonality was complete when - instead of judging the persuasiveness of the evidence presented - it determined that plaintiffs' evidence was merely admissible. Nevertheless, district court was not required to resolve factual disputes regarding (1) whether women were in fact discriminated against in relevant managerial positions, or (2) whether defendant harbors a culture of gender stereotyping and paternalism. District court's ruling as to "typicality" under Rule 23(a) in error, because it failed to consider the effect that defenses unique to the named plaintiffs' claims have on common questions. One plaintiff is an adequate class representative under Rule 23(a). As a current employee who continues to be denied promotion, one plaintiff (Sasaki) has incentive to vigorously pursue injunctive relief as well as monetary damages on behalf of all the class members. But court vacates district court's finding that two other plaintiffs could adequately represent the class, because they were former employees and had no incentive to pursue injunctive relief, though on remand court might determine that they are adequate to represent a damages class. In light of Wal-Mart Stores v. Dukes rejection of the "predominance" test,, the district court on remand must consider whether the claims for various forms of monetary relief will require individual determinations and are therefore only appropriate for a Rule 23(b)(3) class. If district court determines that a (b)(2) class may be certified consistent with this opinion, it may consider whether plaintiffs' claim for punitive damages may properly be sought by a (b)(2) class.

Johnson v. Lucent Technologies Inc., 653 F.3d 1000, 112 FEP 1549 (9th Cir. 2011). Panel: B. FLETCHER, Reinhardt, Wardlow. Claims on Appeal: 1. Title VII retaliation. 2. § 1981 retaliation. Disposition Below: 1. Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff filed charge more than 180 days after employer attempted to revoke benefits, and no deferral recognized where charge was not crossfiled with state agency. No grounds for equitable estoppel (employer did not attempt to mislead employee about rights) or tolling (owing to allegedly diminished mental capacity). 2. Section 1981 retaliation claim covered by catch-all 4-year limitations period, 28 U.S.C. § 1658.

McCollum v. Calif. Dep't of Corrections, 647 F.3d 870 (9th Cir. 2011). Panel: MCKEOWN, Schroeder, Silverman. Claims on Appeal: Title VII and Cal. state law hiring. Constitutional and RLUIPA claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Paid prison chaplaincies, that require that the applicant be a clergy of the denominated faith, protected by BFOQ and thus prisons are thus not required to retain Wiccan chaplain for which no position existed.

Dep't of Fair Housing v. Lucent Technologies, 642 F.3d 728 (9th Cir. 2011). Panel: RESTANI, Thomas [IKUTA, dissenting]. Claims on Appeal: Cal. state law termination (disability). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court had diversity jurisdiction over claim; state agency was not real party of interest, and citizenship of plaintiff is determined by resort to employee's place of residence. District court did not abuse discretion in allowing employee to have only limited intervention rights to participate. On the merits, no genuine issue that employer (1) engaged in interactive process, by having two agents stay in touch with employee throughout disability leave; (2) met burden to look for reasonable accommodation, where it granted leave to allow employee to heal but could not modify job to meet the employee's reduced lifting restrictions; (3) did not discriminate on account of disability where employee could not meet minimum fifty-pound requirement for lifting, let alone 100-pound requirement that it later adopted and fleeting " reference" to degenerative nature of condition was not evidence of pretext.

Zeinali v. Raytheon Co., 636 F.3d 544, 111 FEP 544 (9th Cir. 2011). Panel: M. SMITH, Rawlinson, Jones. Claims on Appeal: Cal. state law termination (race, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding that it lacked subject-matter jurisdiction over the claim on the ground that it concerned the denial of a security clearance by the Department of Defense. Although Supreme Court held in Dep't of Navy v. Egan, 484 U.S. 518 (1988), that security clearance decisions are non-reviewable by MSPB (extended by circuit case law to federal courts), here the plaintiff was not challenging the denial of security clearance, but the collateral issue of whether the employer fired the employee because of the lack of clearance. Here, the employee challenged the termination arguing, among other things, that the security clearance requirement was not a bona fide job requirement and that this reason was pretextual. On the merits, summary judgment was not properly granted. Plaintiff pointed to two, non-Iranian employees in same unit who were permitted to work for up to four years without valid security clearances. Though defendant argued that the other employees' clearances were revoked rather than denied, there is no material legal or factual distinction between these in this case because either status would result in termination.

Adam v. Norton, 636 F.3d 1190, 111 FEP 1089 (9th Cir. 2011). Panel: REINHARDT, Berzon, Pollak. Claims on Appeal: ADEA termination). Disposition Below: Rule 60(b) motion for relief from judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Federal Back Pay Act, 5 U.S.C. § 5596(b), waives U.S. government immunity to damage award of interest on award of back pay.

Spencer v. World Vision, Inc., 633 F.3d 723, 111 FEP 619 (9th Cir. 2011). Panel: [O'SCANNLAIN, concurring][KLEINFELD, concurring][BERZON, dissenting]. Claims on Appeal: Title VII termination (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Faith-based humanitarian organization was covered by 42 U.S.C. § 2000e-1(a) exemption from Title VII. Exemption not limited to churches; if it were, there might be an Establishment Clause issue presented by a statute that favored religions that organized as houses or worship. Court applies standard the "general picture" of organization is "primarily religious." Notes circuit split with Third Circuit on whether a multi-factor test ought to apply to this analysis, LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217 (3d Cir. 2007). No majority on appropriate analysis, but majority agrees that an employer is "eligible for the section 2000e-1 exemption, at least, if it is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts."

Harris v. Maricopa Co. Superior Court, 631 F.3d 963, 111 FEP 503 (9th Cir. 2011). Panel: REINHARDT, Hug [BYBEE, dissenting in part]. Claims on Appeal: Title VII attorneys' fee for defendant. Disposition Below: Award of fees to employer, $85,514.84 fees, $40,150.23 non-taxable costs [defendant]. Outcome on Appeal: Vacated and remanded [plaintiff]. Grounds: District court erred by not finding under Title VII, 42 U.S.C. § 2000e-5(k) which fees were incurred solely by virtue of the need to defend against frivolous claims, i.e., "[u]nless a prevailing defendant can establish that its attorneys would not have performed the work involved except for the need to defend against the frivolous claims."

Dawson v. Entek Int'l, 630 F.3d 928, 111 FEP 306 (9th Cir. 2011) . Panel: BURY, Fletcher, Fisher. Claims on Appeal: 1. Title VII and Ore. law retaliation. 2. Title VII and Ore. law harassment (sex). 3. Ore. law discrimination (sexual orientation). State law tort claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Reversed [plaintiff] Grounds: 1. It was not error, under prevailing Ninth Circuit law, to apply McDonnell Douglas framework to case. It was error to grant summary judgment on plaintiff's retaliation claim, where termination occurred two days after protected activity (complaining about harassment to human resources), and when terminated was told that "we have two different situations here and therefore you're being terminated [from] your employment - for your attendance and then that we will deal with the other situation." 2. There was no evidence that harassment, related to employee's sexual orientation, was connected to any trait associated with effeminacy or other male stereotyping. 3. Oregon statute at relevant time had been interpreted by state's intermediate court to apply to sexual orientation discrimination; that state legislature eventually amended the state act to make that explicit did not detract from that construction. Employer could be held vicariously liable where manager to whom plaintiff complained not only ignored complaint but joined in the name-calling. Genuine issue of material fact whether employee's manager was his "supervisor." Liability for co-worker harassment supported by fact that employer, while undertaking some training of employees, took no action against alleged offenders on ground that employee's complaints were not credible.

Munoz v. Mabus, 630 F.3d 856, 111 FEP 40 (9th Cir. 2010) . Panel: HAWKINS, McKeown, Rawlinson. Claims on Appeal: 1. Enforcement of Title VII settlement. 2. Title VII and ADEA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Vacated and remanded to dismiss for lack of subject-matter jurisdiction [defendant]. 2. Affirmed [defendant]. Grounds: 1. Federal court lacks subject-matter jurisdiction to enforce pre-determination settlement agreement with agency reached under 29 C.F.R. § 1614.603, because federal government did not waive sovereign immunity over such claims. 2. Denial of training supported by non-discriminatory reasons (training would not qualify employee for available any potential vacancy because he would still need 10 years' experience).

Stiefel v. Bechtel Corp., 624 F.3d 1240, 23 A.D. Cases 1380 (9th Cir. 2010) . Panel: CLIFTON, Noonan, Bybee. Claims on Appeal: 1. ADA harassment, termination, and failure to accommodate. 2. ADA retaliation. Disposition Below: 1. Dismissed for failure to state a claim, FRCP 12(b)(6) [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. The EEOC's failure to issue a right-to-sue letter on a charge cross-filed with a local deferral agency is no bar to a suit under the ADA; where the state agency is operating as an agent of the EEOC under a worksharing agreement and the plaintiff was otherwise en Titled to receive a right-to-sue letter from the EEOC, a plaintiff may proceed without such a letter, provided that plaintiff has received a right-to-sue letter from the appropriate state agency.2. Under futile gesture doctrine, employee is not required to apply for a job or promotion if he can show that he was a potential victim of unlawful discrimination and that he would have applied for the job had it not been for those discriminatory practices. In this case, employee was estopped form making this argument because he testified in his deposition that he was kept away from the hiring hall by personal obligations and schedule conflicts, not because he believed that attending the meetings would have been futile.

EEOC v. Prospect Airport Services, 621 F.3d 991, 110 FEP 271 (9th Cir. 2010). Panel: KLIENFELD, Smith, Ikuta. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Claim of harassment of male employee by female co-worker, allegedly supported by co-workers who jeered at employee and rumored that he was gay, presents GIMF on welcomeness, severe-or-pervasive and absence of due care by employer. District court erred in assuming (for Title VII purposes) that welcomeness is a purely objective classification and that most men would welcome sexually-aggressive attention from a woman. employee demonstrated objective unwelcomeness (he complained to the alleged harasser and several managers); yet the employee's subjective desire not to get involved with the woman was also legally material, regardless of his motives (in this case as a recent widower and a Christian believer, he found the attentions of a married woman offensive). Persistent notes and comments over a six-month period, which were intensified enough to cause the employee's performance to deteriorate, presented a triable issue of severity Four managers to whom employee complained took no steps; "Patrick O'Neill, Prospect's assistant general manager, said the harassment 'was a joke' and that Lamas should 'walk around singing to yourself . . . I'm too sexy for my shirt'"

EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103, 110 FEP 271 (9th Cir. 2010) . Panel: TUNHEIM, Kozinski, Fletcher. Claims on Appeal: ADA reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine issue of material fact whether employer's failure to provide American Sign Language (ASL) signer to attend group meetings and briefings for employee ("weekly meetings, job training, and understanding the company's sexual harassment policy") violated duty to reasonably accommodate. Instead of a signer, the employer at first provided only written notes summarizing the meetings (he was not a native-English speaker, his literacy in English was grade school level, and he only got the information after the meeting was already over). Some years later, they had an employee take "contemporaneous" notes during the meeting and show them to employee during the meeting, but this proved also a limited method to get the information across. Employee ceased attending the meetings out of frustration, and was written up for absenteeism. Because meeting-attendance constitutes "benefits and privileges of employment," even when those meetings have no bearing on an employee's job performance (29 C.F.R. § 1630.2(o)(1)(iii)), employer was obliged to provide accommodation. There was also a genuine issue of material fact about whether the company entered into an interactive process with employee to provide an accommodation; trier of fact could conclude that employer refused to provide an interpreter for regular meetings that were less than two hours long because there was a two-hour minimum charge for ASL interpreter services. If employer failed to consider whether the circumstances of a weekly meeting necessitated the use of an ASL interpreter, then the trier of fact could find that it failed to engage in the interactive process in good faith. Failure to provide an ASL interpreter may have also constituted discrimination "in regard to . . . job training." 42 U.S.C. § 12112(a).

Hawn v. Executive Jet Management, Inc., 615 F.3d 1151, 109 FEP 1824 (9th Cir. 2010). Panel: WALLACE, Kozinski, Alsup. Claims on Appeal: Title VII termination (reverse sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While it was error for the district court to require that the employees demonstrate that similarly-situated female employees were managed by the same supervisor, summary judgment could be affirmed on alternative ground that the women's sexually-explicit behavior could be distinguished from the male plaintiffs on the ground that the former's behavior was not unwelcome or the subject of a complaint, while men's behavior was. District court did not abuse discretion by excluding EEOC letter of violation.

Murray v. Principal Financial Group, Inc., 613 F.3d 943, 109 FEP 1524 (9th Cir. 2010). Panel: SCHROEDER, Bybee, Stotler. Claims on Appeal: Title VII discrimination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Grounds: Plaintiff "career agent" who sells investment products for employer was "independent contractor" not covered by Title VII. Panel notes that there is no functional difference between the competing formulas for proving whether an individual is an employee or independent contractor (common law agency, economic realities, common law hybrid). In this case, record established that employee was free to operate business day-to-day without intrusions, sets schedule, decides where to work, pays rent on an office, paid on commission, reports herself as self-employed to the IRS and sells products by other companies.

Brownfield v. City of Yakima, 612 F.3d 1140, 23 A.D. Cases 709 (9th Cir. 2010) . Panel: LUCERO, Hawkins, Smith. Claims on Appeal: ADA testing. § 1983 and FMLA claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer established business necessity to order mental fitness examination under 42 U.S.C. § 12112(d)(4)(A) for police officer where employer had legitimate, objective basis to demand examination - i.e., four highly emotional incidents in a month prior to referral (including several comments to co-workers that "It doesn't matter how this ends"), and numerous occasions overall.

Breiner v. Nevada Dep't of Corrections, 610 F.3d 1202, 109 FEP 1153 (9th Cir. 2010). Panel: BERZON, Noonan, Ikuta. Claims on Appeal: Title VII promotion (reverse sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Male plaintiffs had standing to challenge policy that allowed only women to become lieutenants at women's prison, on the ground that they were discouraged from applying by the express, gender-discriminatory hiring policy and that at least one of the plaintiffs would have qualified for the position. District court erred in holding that the policy affected only three of the various lieutenant positions available throughout the system, and thus imposed only a de minimis impact on the plaintiffs' promotional opportunities. Denial of even a single promotion opportunity is actionable under Title VII, and whether there will be other promotional opportunities for which the person may become eligible is not a consideration. Panel also rejects the BFOQ defense. State proffered three reasons for the policy: "(1) male correctional lieutenants are likely to condone sexual abuse by their male subordinates; (2) male correctional lieutenants are themselves likely to sexually abuse female inmates; and (3) female correctional lieutenants possess an 'instinct' that renders them less susceptible to manipulation by inmates and therefore better equipped to fill the correctional lieutenant role." First theory fails because state did not prove that "all or nearly all" men would tolerate sexual abuse by male guards, or that it is "impossible or highly impractical" to assess applicants individually for this qualification. As to second theory, there is no "basis in fact" for believing that individuals in the correctional lieutenant role are particularly likely to sexually abuse inmates. The third theory "relies on the kind of unproven and invidious stereotype that Congress sought to eliminate from employment decisions when it enacted Title VII" [citations omitted]. Prison had other wise to correct and prevent sexual abuse, such as enforcing existing rules more vigorously: "Where, as here, the problem is employee behavior, prison administrators have multiple resources, including background checks, prompt investigation of suspected misconduct, and severe discipline for infractions, to ensure compliance with institutional rules."

EEOC v. Peabody Western Coal Co., 610 F.3d 1070, 109 FEP 993 (9th Cir. 2010). Panel: FLETCHER, Hug, Klienfeld. Claims on Appeal: Title VII hiring (Indian). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: EEOC brought suit against mining company that leases mines from the Navajo Nation, and (under leases required by Interior Department) maintains a preference for employing Navajo workers at these mines. EEOC contends that the Indian preference exception of Title VII, § 2000e-2(i), permits discrimination in favor of Indians living on or near a particular tribe's reservation, but does not permit discrimination against Indians who live on or near that reservation but are members of another tribe. District court erred in holding both (1) that the EEOC was seeking affirmative relief against the Nation in its amended complaint, and that the Nation therefore could not be joined under Rule 19; [and that] (2) the Secretary was a necessary and indispensable party for whom joinder was not feasible. As to the first, the panel holds that whether or not the complaint sought affirmative relief against the Navajo Nation, the Nation could still be joined under Rule 19. On the second point, the panel holds that for monetary relief, the Secretary needed to be joined, because "Peabody is caught in the middle of a dispute not of its own making." The Navajo preferences were imposed as a condition on the leases by the U.S., and so "[i]f the district court were to hold that the Navajo employment preference provision violates Title VII and to award damages against Peabody, it would be profoundly unfair if Peabody could not seek indemnification from the Secretary." The EEOC was barred by statute from joining the Secretary per 42 U.S.C. §2000e-5(f)(1) (that authority resided solely with the U.S. Attorney General). But the inability to join the Secretary did not require the dismissal of Peabody, at least for injunctive relief: Doctrine of sovereign immunity does not protect the Nation in a suit brought by a U.S. government agency, and that Peabody and the Nation if necessary could seek interpleader relief from the Secretary.

Zuress v. Donley, 606 F.3d 1249, 109 FEP 915 (9th Cir. 2010). Panel: THOMAS, Hall, Noonan. Claims on Appeal: Title VII discrimination (sex). Disposition Below: Dismissal on subject-matter jurisdiction grounds under Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee's claim fell within intra-military immunity, as she was required to serve dual-status under National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, § 1214, 110 Stat. 2422, 2695 (1996), codified at 10 U.S.C. § 10216. Plaintiff argued that under a 1997 amendment to the act, federal statutes of general applicability such as Title VII were placed outside the scope of intra-military immunity. Panel holds that language was not clear enough to abrogate immunity. Noting split of authority (compare Jentoft v. United States, 450 F.3d 1342 (Fed. Cir. 2006) (finding that the amendment abrogated military immunity), with Williams v. Wynne, 533 F.3d 360, 367 (5th Cir. 2008) (1997 Amendments did not effect such a substantive change)).

Carver v. Holder, 606 F.3d 690, 109 FEP 556 (9th Cir. 2010). Panel: TALLMAN, Kleinfeld, Tashima. Claims on Appeal: ADEA failure to rehire. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Federal employee cannot bring civil action under 29 U.S.C. § 633a, based on favorable finding by EEOC, simply to improve on the remedy. Once Office of Federal Operations issues final decision, the only alternatives are to accept what is awarded, file an enforcement action (if there is a dispute about what was awarded), or seek de novo review of liability and relief in federal district court.

Rodriguez v. Maricopa County Community College Dist., 605 F.3d 703, 109 FEP 485 (9th Cir. 2010). Panel: KOZINSKI, Ikuta, O'Connor. Claims on Appeal: Title VII and § 1983 harassment (race, national origin). Disposition Below: Qualified immunity denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: A class of Latino employees contended that college failed to take appropriate action to suspend a faculty member's use of the school's email system to blast messages of a racially/ethnically provocative nature. These included: "YES! Today's Columbus Day! It's time to acknowledge and celebrate the superiority of Western Civilization"; "America did not become the mightiest nation on earth without distinct values and discrimination . . . . [o]ur survival depends on discrimination."; "[I]f we don't pull ourselves out of the multicultural stupor, another culture with some pretty unsavory characteristics (here, here, and here) will dominate (here, here, and here) [and not without a little help from the treasonus scum Bill Clinton]"; "[t]he only immigration reform imperative is preservation of White majority." While the president and chancellor issued disclamatory emails disapproving of the messages, they declined to take disciplinary or corrective action against the faculty member, in spite of the urging of Latino staff. Panel holds that president, chancellor and others have qualified immunity. Public university employers may be limited in what steps they can take to arrest purely speech-based harassment. "Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities-sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments-have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale." In this case, class of employees were not targeted at anyone and were purely speech-conduct, and so protected by the First Amendment. Open issue whether such speech by an employee's manager might constitute evidence of discrimination, but panel observes that no such case was presented here (the faculty member did not supervise the plaintiffs). It also holds that the proposed measures to limit the alleged harassment - cutting-off the individual's access to email or shutting down the system entirely - also abraded First Amendment rights. The panel remands for entry of an order granting qualified immunity to individuals, and mandating that court reconsider summary judgment for the remaining defendants on the merits.

Porter v. Winter, 603 F.3d 1113, 109 FEP 225 (9th Cir. 2010). Panel: REINHARDT, Schroeder Bea. Claims on Appeal: Title VII retaliation. Disposition Below: Dismissal on subject-matter jurisdiction grounds under Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Federal employees with Title VII claims must exhaust administrative remedies within their home agencies and the EEOC, under section 717(b) (42 U.S.C. § 2000e-16) before filing a civil action in federal district court. U.S. District Court may, nonetheless, adjudicate a claim for attorney's fees alone for an employee who prevailed in the administrative proceedings. Panel holds that "under New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980), federal courts have subject matter jurisdiction over claims brought solely to recover attorney's fees incurred in Title VII administrative proceedings." Carey expressly stated that under Title VII § 706(k) (42 U.S.C. § 2000e-5(k)) that Title VII authorizes 'a civil suit in federal court . . . solely to obtain an award of attorney's fees for legal work done in state and local proceedings.' Carey, 447 U.S. at 66 (emphasis added by court)." Noting split with Fourth Circuits (Chris v. Tenet, 221 F.3d 648, 654 (4th Cir. 2000)).

Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 109 FEP 15 (9th Cir. 2010). Panel: HAWKINS, Reinhardt, Graber, Fisher, Paez, Berzon [GRABER, concurring] [IKUTA, Kozinski, Rymer, Silverman, Bea, dissenting] [KOZINSKI, dissenting]. Claims on Appeal: Title VII pay and promotion (sex). Disposition Below: Class certification granted [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Lawsuit challenges nationwide pay and promotion practices at some 3,400 stores, said to discriminate against a class of 1.5 million current and former women employees. Fed. R. Civ. P. 23 requires district court to make findings on each element of Rules 23(a) and (b), even if such findings necessarily overlap the merits. Nevertheless, district court is to steer clear of deciding the merits at this stage. District courts maintain discretion to regulate pre-trial procedures to avoid having the certification stage run off the rails, such as to limit discovery. "[We would expect a district court to circumscribe discovery more often in a Title VII case than in a securities class action resting on a fraud-on-the-market theory, because the statistical disputes typical to Title VII cases often encompass the basic merits inquiry and need not be proved to raise common questions and demonstrate the appropriateness of class resolution." Rule 23(b)(3) likely requires a more searching review than the threshold requirements of Rule 23(b)(2); in particular "Rule 23(b)(3) requires a district court to formulate 'some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case.'" District court in this case observed requirements of Rule 23. Under Rule 23(a)(2), commonality test is "'qualitative rather than quantitative'-one significant issue common to the class may be sufficient to warrant certification." District court judge found commonality on the following: "(1) facts supporting the existence of company-wide policies and practices that, in part through their subjectivity, provide a potential conduit for discrimination; (2) expert opinions supporting the existence of company-wide policies and practices that likely include a culture of gender stereotyping; (3) expert statistical evidence of class-wide gender disparities attributable to discrimination; and (4) anecdotal evidence from class members throughout the country of discriminatory attitudes held or tolerated by management." District court did not abuse its discretion in admitting (over a FRE703 challenge) the expert testimony of Dr. William Bielby on "social framework analysis,"foundation for proving a corporate backdrop of gender stereotyping and bias, and statistical expert Dr. Richard Drogin, despite defendant's objections to his methodology. Court refrains from deciding whether FRE703 standards apply equally at the class-certification stage and at trial on the merits. The district court also did not abuse its discretion in crediting the plaintiffs' expert evidence over the defendant's evidence. A common practice of delegating discretionary decisions to manager may constitute a "common practice" worthy of certification in a Title VII case. Variations in promotion and pay experience did not deprive the class of typicality with the named plaintiffs. Class back pay remedy was manageable; employer's extensive database containing information on each employee individually with respect to job history, seniority, job review ratings, and other factors would enable determination of each class member's qualifications for promotion without the need for potentially unmanageable individualized hearings. Rule 23(b)(2) can furnish a proper basis for certification of a Title VII back pay class; issue of "predominance" includes factors such as whether the monetary relief sought determines the key procedures that will be used, whether it introduces new and significant legal and factual issues, whether it requires individualized hearings, and whether its size and nature-as measured by recovery per class member-raise particular due process and manageability concerns would all be relevant, though no single factor would be determinative. District court abused its discretion when it certified a punitive-damage class under Rule 23(b)(2) without considering whether it was more appropriately handled under Rule 23(b)(3). Plaintiffs who were not Wal-Mart employees at the time the complaint was filed lack standing to bring a suit for injunctive and declaratory relief.

Alvarado v. Cajun Operating Co., 588 F.3d 1261, 22 A.D. Cases 1172 (9th Cir. 2009) . Panel: RAWLINSON, Bybee, Burns. Claims on Appeal: ADA retaliation. Disposition Below: Motion in limine granted; interlocutory appeal [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: ADA retaliation claims are not within ambit of 42 U.S.C. § 1981a, which applies only to discrimination, and thus, employee had no right to jury trial or claim for legal (i.e., compensatory or punitive) relief.

Becerril v. Pima County Assessor's Office, 587 F.3d 1162, 22 A.D. Cases 1025 (9th Cir. 2009). Panel: Per Curiam (Fletcher, Canby, Graber). Claims on Appeal: 1. ADA reassignment. 2. ADA reasonable accommodation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No genuine issue of material fact about motive for reassigning employee, where employer was acting on complaints of misconduct. 2. ADAAA not retroactive. Temporomandibular disorder not a "disability" because she was not limited in major life activity of talking; eating hard foods is not a major life activity; and pain and grogginess did not substantially limit ability to think or concentrate.

Fleming v. Yuma Regional Medical Center, 587 F.3d 938, 22 A.D. Cases 1033 (9th Cir. 2009). Panel: BYBEE, Gould, Tymkovich. Claim on Appeal: Rehabilitation Act hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff] . Grounds: Section 504 of the Rehabilitation Act (29 U.S.C. § 794) applies to independent contractors (noting split in circuits on this issue).

Barker v. Riverside County Office of Educ., 584 F.3d 821, 22 A.D. Cases 835 (9th Cir. 2009). Panel: PREGERSON, Nelson, Singleton. Claims on Appeal: ADA and Rehabilitation Act retaliation. Disposition Below: Judgment of dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in dismissing case on standing grounds. Plaintiff school teacher has standing under ADA and Rehabilitation Act to sue for harassment and constructive discharge after she voiced concerns that the County Office of Education was not complying with requirements of federal and state law in how it provided educational services to its disabled students.

Indergard v. Georgia-Pacific Corp., 582 F.3d 1049, 22 A.D. Cases 660 (9th Cir. 2009). Panel: GOODWIN, Fisher [O'SCANNLAIN, dissenting]. Claims on Appeal: ADA and Ore. state law medical testing . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee was subjected to a two-day full battery of physical examinations (PCE) before her return to work, which included a treadmill and lifting tests. Panel holds that exam was used substantially for the illegal purpose of detecting disabilities (remanding the issue of whether the PCE was job related and consistent with business necessity). Following the EEOC's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations, panel cites seven factors that may be used to determine whether a test violates 42 U.S.C. § 12112(d)(4)(A). Weighing the factors, the panel majority finds that they mostly tilt in favor of the employee's claim: person who performed test was licensed occupational therapist, she also interpreted employee's performance and recommended that she not return to work; although PCE was ostensibly intended to determine whether plaintiff could return to work, the broad reach of the test was capable of revealing impairments of her physical and mental health, particularly in light of subjective reports of her current pain level, use of medication and assistive devices, and communication, cognitive ability, attitude, and behavior; also recorded her heart rate and breathing pattern after the treadmill test, and muscle pain and stiffness after the first day of testing, which measures physiological response to her performance of a task and going beyond collecting information necessary to determine whether employee was physically capable of performing the task.

Sharer v. State of Oregon, 581 F.3d 1176, 22 A.D. Cases 677 (9th Cir. 2009). Panel: FISHER, Goodwin, O'Scannlain. Claim on Appeal: Rehabilitation Act termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant] . Grounds: Oregon Public Defender Office where employee worked was not a covered employer under the Rehabilitation Act § 504.

EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 107 FEP 242 (9th Cir. 2009). Panel: FLETCHER, Tashima [NOONAN, dissenting]. Claim on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial ($5000 mental suffering, $135,000 lost earnings, $250,000 punitive damages; $36,552 back pay, $5156 prejudgment interest) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Defendant forfeited objection to sufficiency of the evidence by not presenting Fed. R. Civ. P. 50(a) motion on retaliation (except for passing reference) at the close of the EEOC's case-in-chief, other than on issue of whether employee engaged in protected activity and defendant's agents knew about it. Record contained evidence that employee did complain, and he manifested reasonable belief that the conduct complained about constituted discrimination (he made complaints about 2-3 insults about his religion, including statement that "Muslims need to die" and "[t]here's a culture in Go Daddy. You complain you get fired." No need for employee to complain about all incidents. Evidence of causation include that only days passed between complaint and termination, and that employer obfuscated when it actually made the decision to fire the employee. New trial motion properly denied.

Jackson v. Rent-A-Center West, Inc., 581 F.3d 912, 107 FEP 254 (9th Cir. 2009). Panel: THOMAS, Nelson [HALL, dissenting]. Claim on Appeal: § 1981 discrimination and retaliation. Disposition Below: Dismissed on motion to compel arbitration [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006), challenge to the enforceability of an entire contract presumptively belongs to the arbitrator, while a challenge to the enforceability of the arbitration provision itself belongs to the court. In case alleging statutory violations, where a party specifically challenges arbitration provisions as unconscionable and hence invalid, whether provisions are unconscionable is an issue for the court to determine, applying the relevant state contract law principles. This rule applies even where the agreement's express terms delegate that determination to the arbitrator. Court affirms the district court's holding that fee-sharing provision itself was not substantively unconscionable, but remands the balance of the case for further review.

Nicholson v. Hyannis Air Service, 580 F.3d 1116, 107 FEP 261 (9th Cir. 2009). Panel: REINHARDT, Brunetti, Thomas. Claim on Appeal: Title VII transfer. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Female pilot dropped from route due to low score on crew resource management ("CRM"), consisting of communication and cooperation skills that enable the pilots and crew of an airplane to work together to maximize the safety and efficiency of a flight. Court finds that the lower court misanalyzed the prima facie case. District court assessed Nicholson's alleged CRM deficiencies under the rubric of meeting the employer's "legitimate expectations." As CRM skills are a subjective qualification, they cannot be considered in evaluating a plaintiff 's qualifications at the first step of McDonnell Douglas. Plaintiff also presented a genuine issue of material fact about whether similarly situated men were treated better. Allowing male pilots to re-test on technical flying skills, while not offering a comparable opportunity to Nicholson to correct her CRM, is prima facie evidence of sex discrimination. Although CRM skills are different from the other skills required of pilots, any distinction between CRM skills and technical piloting skills is not material for purposes of determining whether the male pilots were 'similarly situated' to Nicholson. The CRM skills allegedly lacking in plaintiff and the technical piloting skills lacking in the male pilots each were skills required of pilots and necessary for safe flying, and airline treated both sets of skills as ones that could be acquired and improved upon through training. Court also finds a genuine issue of material fact on pretext. Airline's failure to treat Nicholson in the same manner that it treated similarly deficient male pilots provides some evidence that airline disciplined her because of her sex and not because of her alleged CRM deficiencies. Record also included sex-related remarks, such as the complaint that employee had a "machismo" attitude; captain's concern about flying with her because he and the plaintiff had a prior sexual encounter; and removal from a flight by that same captain, who expressed concern about whether his work problems with her were related to that earlier relationship.

EEOC v. The Boeing Co., 577 F.3d 1044, 106 FEP 1839 (9th Cir. 2009). Panel: HAWKINS, Berzon, Clifton. Claims on Appeal: Title VII termination (sex) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Two claimants, Ms. Castron and Ms. Wrede, received low scores on reduction-in-force ("RIF") assessments and were terminated. For the first claimant, after complaining of a hostile work environment, she was transferred to a new work group and was terminated in a RIF two months later, in October 2002. Genuine issues of material fact exist about discrimination and retaliation based on direct evidence: co-worker testified that employee's supervisor made a number of demeaning and derogatory comments about women ("didn't want any more women," "didn't have good luck with females," not enough time to train women, women should be home). These comments, considered along with employee's interactions with supervisor over the course of her employment, are sufficient to create an inference of discriminatory motive even though the comments were not directed specifically at employee or made in regard to decisions about her employment. Based on sexist comments alone, a jury might reasonably infer that supervisor's decision to transfer employee, rather than a male coworker about whom she complained, to a position where her job would be less secure may have resulted from improper motivations, including discriminatory intent, retaliatory intent, or both. Alternatively, there was sufficient evidence of pretext to warrant a trial: employee's new supervisor had previously referred to employees a "little girl" and made a "joking" inquiry as to whether she "broke a nail." Although these comments occurred two years prior to employee's firing, they constitute at least circumstantial evidence of discriminatory animus. Moreover, co-workers testified that her performance was superior to male employees who survived the RIF. For the second claimant, though she did not have the same direct evidence, the panel found that there was sufficient indirect evidence, under a burden-shifting method of proof, to survive summary judgment. Rejects a same-actor inference in this case because of a countervailing factor, i.e., none of the employees who the supervisors ranked lower than employee in the April and July RIFs ultimately lost their jobs. All six men had their RIFs cancelled or successfully sought redeployment within Boeing, and none was laid off. Supervisor also dropped her in all categories in the ranking without an articulable basis. Given the evidence that employee's RIF scores were not worthy of credence, a jury could find that employee suffered discrimination, notwithstanding any inference arising from her supervisors' prior employment decisions that were more favorable, or at least less adverse, to that employee. Moreover, employee was the only woman in her skill code, and was laid off while every male employee identified for termination based on their RIF scores in all three RIFs ultimately remained at company. Some men might have been retrained because the department's supervisor offered them assistance in finding other positions, while women were not offered the same opportunity.

Kraus v. Presidio Trust Facilities Div./Residential Mgt. Branch, 572 F.3d 1039, 106 FEP 1497 (9th Cir. 2009). Panel: BERZON, Nelson, Clifton. Claims on Appeal: Title VII and ADA discrimination, retaliation and harassment. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under 29 C.F.R. § 1614.105(a)(1), employee can satisfy duty to contact a "EEO Counselor" within 45 days of violation by contacting "EEO Officer," even where there also an "EEO Counselor" available. EEOC adheres to interpretation that employee may make contact with "any agency official logically connected with the EEO process." On remand, district court should decide whether, in each instance, employee "exhibit[ed] an intent to begin the EEO process."

Browning v. Paulson, 567 F.3d 1038, 106 FEP 521 (9th Cir. 2009). Panel: FISHER, Graber, Smith. Claims on Appeal: Title VII demotion (race) and retaliation. Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Reaffirming holding in Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338 (9th Cir. 1987), that district court's decision not to give permission instruction about the probative value of pretext was not reversible error.

Bova v. City of Medford, 564 F.3d 1093, 106 FEP 206 (9th Cir. 2009). Panel: GRABER, Fisher, Smith. Claims on Appeal: ADEA benefits. State statutory and constitutional law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Dismissed [defendant]. Grounds: Challenge to city's option for employees to join union-funded health plan, which does not cover retirees, not ripe for current employees who are retirement eligible but have not yet retired.

State of Alaska v. EEOC, 564 F.3d 1062, 106 FEP 97 (9th Cir. 2009). Panel: KOZINSKI, Schroeder, Thomas, Silverman, Wardlaw, Berzon, Smith [O'SCANNLAIN, dissenting in part] [IKUTA, Tallman, Callahan, dissenting]. Claims on Appeal: GERA termination and harassment (sex, race), and retaliation. Disposition Below: Review of agency order finding jurisdiction [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Government Employee Rights Act of 1991 (GERA), which covers policy-makers in state government, constitutionally abrogated state's Eleventh Amendment immunity as to claims (as presented in this case) that would also state a claim directly under Fourteenth Amendment Equal Protection (termination, harassment) or Due Process/First Amendment (retaliation). Because the plaintiffs state a claim cognizable directly under the federal constitution, there is no need to consider whether GERA was valid prophylactic law.

EEOC v. Federal Express, 558 F.3d 842 (9th Cir. 2009). Panel: TASHIMA, McKeown, Gould. Claim on Appeal: EEOC administrative subpoena. Disposition Below: Enforced [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Court rejects mootness challenge, holding that although employer eventually provided the same records in another case, case fell within "capable of repetition, evading review" category; voluntary cessation not enough. Court found post-charge enforcement grounded in the Title VII enforcement mechanism and the EEOC's administrative regulations. EEOC authority to investigate did not terminate with the issuance of the right-to-sue letter, per 29 C.F.R. § 1601.28(a)(3): "Issuance of a notice of right to sue shall terminate further proceeding of any charge that is not a Commissioner charge unless [an enumerated official of the Commission] determines at that time or at a later time that it would effectuate the purpose of Title VII or the ADA to further process the charge." Moreover, according to the EEOC's interpretation of its regulation, the agency may continue to pursue a charge that alleges systemic discrimination even after the right-to-sue issues (1 EEOC Compliance Manual § 6.4 (June 2006)). Granting deference to this regulation and the compliance manual, the panel finds that the EEOC could enforce the subpoena. The panel noted split with Fifth Circuit's EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997) decision, "disagree[ing] with Hearst's notion that the charging party can, through his or her actions (that is, by filing suit), divest the EEOC of authority." Court rejects arguments that data sought was irrelevant or the request overbroad. Information about maintenance of computerized files not strictly evidence of discriminatory treatment, but helpful in crafting addition al future requests. Request may cover other kinds of discrimination than presented by charge.

Rohr v. Salt River Project Agricultural Improvement & Power Dist., 555 F.3d 850, 21 A.D. Cases 964 (9th Cir. Feb. 13, 2009). Panel: BAER, Paez, Berzon. Claim on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff was placed on travel and other work restrictions, i.e., that he "not be given overnight out-of-town assignments," because of difficulty of maintaining regimen to treat insulin-dependent Type 2 diabetes. Court finds genuine issue of material fact about "disability" issue, that he was substantially limited in the major life activity of eating due to the disease itself and the treatment. Plaintiff and doctors testify that he must monitor strictly what and when he may eat. The effort to manage diet is itself substantially limiting. Insulin injections themselves can be dangerous. Plaintiff testified in his deposition that it is difficult to determine how much insulin to take, as the necessary amount varies depending on the food and activity level. While the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008), does not apply retroactively, recitals in new act support generous construction of ADA. there is a genuine issue of material fact about whether the employee was qualified. The employe claimed that he was unable to take a mandatory respirator certification test (because of high blood pressure. But the court holds that "OSHA's regulations were sufficiently broad to allow Salt River the discretion to determine how, and how often, it would evaluate its employees' ability to use a respirator. As such, there is a genuine issue of fact whether Salt River could have provided reasonable accommodations to enable Rohr to complete the test." The panel also holds that because "Salt River has failed to show that the respirator certification test was job-related and a business necessity, and because the test tended to screen out an individual with diabetes-related high blood pressure, Salt River has not established that it is en Titled to summary judgment." There is also a genuine issue of material fact about whether the employee could perform the essential functions of his job: "Diabetes did not prevent Rohr from performing the bulk of his job, which, as described supra, was mostly office work. The disease did, however, prevent him from participating in out-of-town and overnight field assignments to repair outages. The parties dispute whether such field assignments were an 'essential function' of his job, and Salt River's own medical staff stated that he was 'physically able to perform the essential functions of his job with the accommodations as outlined.'"

EEOC v. Federal Express, 543 F.3d 531, 104 FEP 324 (9th Cir. 2008). Panel: TASHIMA, McKeown, Gould... Claim on Appeal: EEOC administrative subpoena. Disposition Below: Enforced [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Court rejects mootness challenge, holding that although employer eventually provided the same records in another case, case fell within "capable of repetition, evading review" category; voluntary cessation not enough. Court found post-charge enforcement grounded in the Title VII enforcement mechanism and the EEOC's administrative regulations. EEOC authority to investigate did not terminate with the issuance of the right-to-sue letter, per 29 C.F.R. § 1601.28(a)(3): "Issuance of a notice of right to sue shall terminate further proceeding of any charge that is not a Commissioner charge unless [an enumerated official of the Commission] determines at that time or at a later time that it would effectuate the purpose of Title VII or the ADA to further process the charge." Moreover, according to the EEOC's interpretation of its regulation, the agency may continue to pursue a charge that alleges systemic discrimination even after the right-to-sue issues (1 EEOC Compliance Manual § 6.4 (June 2006)). Granting deference to this regulation and the compliance manual, the panel finds that the EEOC could enforce the subpoena. The panel noted split with Fifth Circuit's EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997) decision, "disagree[ing] with Hearst's notion that the charging party can, through his or her actions (that is, by filing suit), divest the EEOC of authority." Court rejects arguments that data sought was irrelevant or the request overbroad. Information about maintenance of computerized files not strictly evidence of discriminatory treatment, but helpful in crafting addition al future requests. Request may cover other kinds of discrimination than presented by charge.

Whitman v. Mineta, 541 F.3d 929, 104 FEP 129 (9th Cir. 2008). Panel: NELSON, Tashima, Fisher. Claim on Appeal: 1.ADEA retaliation. 2. ADEA promotion. 3. ADEA discrimination. Disposition Below: 1. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 3.Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Plaintiff may state claim for retaliation against federal government under 29 U.S.C. § 633a, following recent Supreme Court decision in Gomez-Potter. 2. Plaintiff failed as a matter of law to establish that he was qualified for promotion, where he did no show he had requisite knowledge or experience, lacked skills, and failed to show he was able to hand responsibilities. 3. Waived because employee failed to notify EEO specialist about denial of detail extension within 45 days.

Hurlic v. Southern California Gas, 539 F.3d 1024, 104 FEP 167 (9th Cir. 2008). Panel: SMITH, B. Fletcher, Friedman. Claim on Appeal: Calif. FEHA age benefits claim. ERISA claims (not discussed here). Disposition Below: Dismissal for failure to state a claim [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: State anti-discrimination law challenge to cash balance plan preempted by ERISA. Although state anti-discrimination law is not readily preempted by ERISA, because of the joint state/federal enforcement mechanism envisioned under the ADEA (Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 101-06 (1983)), in this case the state act sweeps more broadly than the ADEA, because Congress amended the ADEA expressly to make it consistent with ERISA's substantive provisions, while California law has no comparable carve-out.

Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 103 FEP 1673 (9th Cir. 2008). Panel: HAWKINS, O'Scannlain, McKeown. Claim on Appeal: §§ 1981, 1983, 1985, 1986 hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Claim was time-barred. For limitations purposes, 'injury' that plaintiff must discover is whether there has been an adverse action, not whether employer acted with discriminatory intent in performing that act.

Parra v. Bashas', Inc., 536 F.3d 975, 103 FEP 1682 (9th Cir. 2008). Panel: HUG, Schroeder, Callahan. Claim on Appeal: Title VII/§ 1981 pay discrimination.Disposition Below: Class certification FRCP 23(f) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court abused discretion in finding no commonality for pay discrimination claim for purposes of class certification based on a finding that the employer allegedly equalized pay scales by the time of the order. Alleged race discrimination in setting pay scales was a common issue.

Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 103 FEP 1553 (9th Cir. 2008). Panel: O'SCANNLAIN,Smith,Mosman. Claim on Appeal: 1. Section 1981 harassment. 2. Calif. Unruh Act. 3. Cal. FEHA harassment. Disposition Below: 1. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 3.Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Single racial epithet over 28-month period, even if combined with several personally offensive remarks that had no racial connotation, not shown to be motivated by race. Alleged refusal to hire another African-American candidate because of race not targeted at him. 2. Unruh Civil Rights Act does not apply to employment relationships. Intervening state appellate court decision holding that doctor with privileges may have claim under Unruh Act distinguishable because plaintiff was paid a salary by the hospital, hospital retrained control over all material aspects of his activities, made shift and nurse assignments, and required him to be on staff. 3. State law claims time-barred; no equitable tolling.

Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 103 FEP 1142 (9th Cir. 2008). Panel: HART, Paez [KLIENFELD, dissenting in part]. Claims on Appeal: 42 U.S.C. §§ 1981, 1983, 1985 and 1986, Title VII and Cal. state law (race). Disposition Below: Judgment of dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in dismissing complaint on ground that it was excessively lengthy under Fed. R. Civ. P. 8(a)(2).

Gribben v. UPS Inc., 528 F.3d 1166, 20 A.D. Cases 1185 (9th Cir. 2008). Panel: THOMPSON, Canby, Smith. Claims on Appeal: 1. ADA retaliation. 2. ADA reasonable accommodation. Disposition Below: 1. Judgment after a jury trial [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Evidentiary argument not preserved at trial, and claims not pled in complaint, did not present reversible error. Denial of impeachment testimony because it was not in the pre-trial order was error under Fed. R. Civ. P. 26(a)(1)(A) and (3), but not prejudicial because evidence did not contradict principal defense witness's testimony. No error in excluding prior consent decree between EEOC and employer. Error, if any, in excluding punitive damage instruction immaterial because jury entered defense verdict.2. District court erred in holding that employee with congestive heart disease, to establish status as disabled, must "submit . . . evidence as to the abilities of an average person in the general population to participate in outdoor activities in the Phoenix summer." Record by plaintiff and his physician established that employee could not exert himself in hot weather. Thus he presented a genuine issue of material fact as to whether his impairment was substantial and limited his ability to perform regular daily activities including breathing, thinking and physical activities in temperatures of 90 degrees or more.

Brown v. City of Los Angeles, 521 F.3d 1238, 20 A.D. Cases 807 (9th Cir. 2008). Panel: Per Curiam [Hall, Graber, Berzon]. Claims on Appeal: ADA (Title II) and Calif. FEHA benefits. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No violation to provide different disability retirement and seniority retirement programs; differentiation not "because of disability."

Diaz v. Eagle Produce Ltd. Ptnrshp., 521 F.3d 1201, 103 FEP 16 (9th Cir. 2008). Panel: SMITH, Canby, Larson. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed in part [plaintiff]. Grounds: Four employees claim they were terminated from agricultural work because of age. One employee failed to meet reasonable expectations and thus cannot make out prima facie case (employee was fired after numerous violations of rule against solicitation on property). That other three were hired when they were already in the protected group (same-actor inference) suggests inference of age discrimination not warranted; statistics of average age of replacement employees too small a sample size to have significance. Statistics for period concerning one supervisor (Brandt), though, shows nearly 16-year disparity. Same supervisor could be inferred to have knowledge of ages, because he had personal contact with individuals. Other evidence supporting inference of discrimination under Brandt was that younger employees did not get laid off, plaintiff Diaz (and one other plaintiff) had greater experience than younger successors. As to Diaz, employer does not proffer legitimate nondiscriminatory reason for termination, so summary judgment was error as to him. That there was turndown in work does not explain why Diaz was selected. Two other plaintiffs, though, properly dismissed because of legitimate reason (destruction of property).

Davis v. Team Electric, Inc., 520 F.3d 1080, 102 FEP 1641 (9th Cir. 2008). Panel: REINHARDT, Goodwin, Smith. Claims on Appeal: 1. Title VII discrimination (sex). 2. Title VII retaliation. 3. Title VII harassment (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. Grounds: 1. Assigning more, or more burdensome, work responsibilities, is an adverse employment action. Employee stated claim that she was assigned more strenuous overhead work (which caused her physical pain) forced to work more with Monkote (a hazardous chemical), and was given less varied work than her male co-workers. Employee also alleged that she was excluded from meetings, not allowed to use a trailer for breaks and ignored by her supervisors when she called on the radio. Court held that theses were also adverse employment actions. Not an adverse employment action, though, to assign inferior gloves and clothing that did not affect terms and conditions of employment. Employee also presented specific and substantial evidence that the employer's reasons were pretextual-- comments by supervisors (e.g., foreman said he "felt uncomfortable" around her; foreman said "this a man's working world out here, you know"; assigned to a foreman who "needs a girlfriend"; told that food served at a meeting was "for guys only"; informed that men didn't mind working with women "if they don't complain"). Comments were made in context of work assignments by persons who affected working conditions and locations. Absence of female supervisors also probative. 2. There was sufficient "temporal proximity" between the termination of the employee's EEOC complaint and her termination three days later to infer retaliation. Employer failed to meet its burden of production as to why it selected employee for layoff. 3. Employee presented genuine issue of material fact about whether she suffered a severe or pervasive hostile work environment. Demeaning remarks directed by the foremen and co-workers at employee would be perceived by reasonable woman as harassing. Employer would be vicariously liable for hostile work environment created by supervisors and could not present affirmative defense because employer had no anti-harassment policy and blocked employee's access to supervisors to complain.

Surrell v. California Water Service Co., 518 F.3d 1097, 102 FEP 1345 (9th Cir. 2008). Panel: OBERDORFER, Nelson, Reinhardt. Claims on Appeal: 1. Title VII and §1981 promotion and training (race). 2. Title VII and §1981 harassment (race). 3. Cal. FEHA disability discrimination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Noting split in circuits, panel holds that once an employee becomes eligible to receive a right-to-sue letter, the requirement that an employee obtain such a letter is met by receipt of a right-to- sue letter from a state deferral agency. Employee loses, nonetheless, on the merits of the claim. Two, unsigned pages of unsigned notes, unauthenticated, could not be admitted as expert statistical analysis. Employee's own testimony that she was the lone black in the facility admissible, but not probative where other candidate had five years' of experience on plaintiff. Employee also does not rebut employer's proffered explanation (other candidate required less training and increased workload). 2. Although employee presumably established prima facie case of retaliation, she could not rebut legitimate, non-discriminatory reason for her being subjected to drug testing (her impaired state at work, after prior tests showed illegal drug use). 3. No evidence that unflattering remarks were based on race.

Williams v. The Boeing Co., 517 F.3d 1120, 102 FEP 1352 (9th Cir. 2008). Panel: TALLMAN, Beezer, Tashima. Claims on Appeal:§ 1981 compensation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employees did not lack standing to sue on pre-2000 damage claims for discriminatory compensation. Nevertheless, summary judgment properly granted on ground that claims were time-barred. Original complaint did not provide fair notice of such a claim under Fed. R. Civ. P. 8(a), which alleged racially discriminatory promotions, harassment and retaliation. Description of claim in release language later Consent Decree approved by employer not definite enough; only one passing reference to compensation in forty pages. Nor did the amended complaint relate back under Fed. R. Civ. P. 15(c)(1)(B) as there is no common core of operative facts between compensation and promotion. Employer not judicially estopped from challenging relation back by stray language in Consent Decree based on passing reference to pay. No tolling based on pendency of class complaint under American Pipe because class complaint did not encompass compensation. Plaintiffs who left company lacked standing to challenge district court's decertification of class of post-2000 claims of racially-discriminatory compensation.

Fichman v. Media Center, 512 F.3d 1157, 20 AD Cases 216 (9th Cir. 2008). Panel: THOMAS, Callahan, Roth. Claims on Appeal: ADA and ADEA discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Various Titles associated with defendant Media Center -- the producer of public access shows -- held not to fit the definition of "employees." The court holds that the Board of Directors are not employees because Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003). They labored as volunteers just 2-4 hours a month, without pay, in contrast to regular staff. Their task was to set policy for the Media Center. "The personal satisfaction and professional status several directors reported gaining from their positions with Media Center are typical benefits of volunteer work." The only tangible "benefit" they received was director and officer insurance. Neither were the independent producers properly classified as "employees," whom the Media Center simply trained on the studio equipment and then had sign contracts to use the facility. "Media Center does not have the power to hire or fire producers. It does not supervise them in a traditional employer-employee manner. The producers are not paid a salary, nor are they en Titled to employee benefits."

Bates v. UPS, 511 F.3d 974, 20 A.D. Cases 1 (9th Cir. 2007). Panel: MCKEOWN, Clifton, Fisher, Gould, Ikuta, Hawkins, Kozinski, Paez, Rymer, Schroeder, Silverman, Smith, Thomas [BERZON, Reinhardt, dissenting in part]. Claim on Appeal: ADA, Calif. FEHA and Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code § 51 hiring. Disposition Below: Judgment after a bench trial (injunctive relief) [plaintiff]. Outcome on Appeal: Vacated and remanded [defendant]. Grounds: Challenge to a "forced whisper" hearing standard, applied by UPS as a qualification for all of its drivers. The U.S. Department of Transportation sets such a standard for drivers of vehicles with a gross vehicle weight rating (GVWR) of 10,001 or more pounds (49 C.F.R. § 391.41(b)(11)). Class challenged UPS's imposition of the same standard on drivers of lighter trucks, termed "package cars," not subject to the DOT regulation. District court conducted a bench trial and found -- applying a pattern-or-practice methodology borrowed from Title VII and Teamsters v. United States, 431 U.S. 324 (1977) -- that UPS failed to support its "forced whisper" policy under the ADA's § 12112(b)(6) qualification standards. Lead plaintiff had standing. Even though he accepted reassignment into a position that barred him from bidding on a package-car driving position, remaining class members are not foreclosed from attaining relief since the class was long ago duly certified. Teamsters presented the wrong model to examine a facial classification such as a hearing standard. The court rejected argument that hard-of-hearing drivers were not qualified (i.e. could not meet the "essential functions" of the job) because they could not meet the company's hearing qualification standard. District court erroneously analyzed the business necessity defense without first weighing whether the plaintiffs demonstrated that they were qualified to safely drive the package cars. Plaintiffs' burden to prove "otherwise qualified "would be to show that each meets the basic qualifications for the package-car driver position (seniority, twenty-one years of age, and holding a valid driver's license) and can drive a package car safely, including having a clean driving record and passing the driving test. The district court was also directed to determine whether any reasonable accommodation would be necessary for plaintiffs to meet those qualifications. Assuming that employees made out these preconditions under the ADA, the district court's finding of "discrimination" under the ADA could stand. Regarding "business necessity" defense, the employer bears the burden of showing that the higher qualification standard is job-related. Court overruled Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001), which had equated business necessity with the more-onerous standard of BFOQ under Title VII. District court also erred in categorically rejecting the relevance of the DOT standard to package cars. The court also ordered a remand of the liability finding under the California Fair Employment and Housing Act (FEHA). Unruh Act does not apply to employment actions.

Dukes v. Wal-Mart Inc., 509 F.3d 1168, 102 FEP 257 (9th Cir. 2007). Panel: PREGERSON, Hawkins [KLEINFELD, dissenting]. Claim on Appeal: Title VII pay and promotion (sex). Disposition Below: Class certification granted [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Lawsuit challenges nationwide pay and promotion practices at some 3,400 stores, said to discriminate against a class of 1.5 million current and former women employees. Rule 23 factors (commonality, typicality, etc.) must be weighed even if it may overlap with the merits. Numerosity not contested. Commonality established by evidence of company-wide corporate practices and policies, statistical evidence of gender disparities and anecdotal evidence. Panel affirms the admissibility of sociological evidence by Dr. William Bielby (social framework analysis) and statistical evidence by Dr. Richard Drogin demonstrating a company-wide bias against promoting and compensating women employees equal to men, on FRE 702 and 703 grounds; all challenges implicate weight rather than admissibility. Statistician's methodology acceptably explains why regional rather than store-level analysis correct. Chow test to determine whether data may be aggregated not required as a matter of law. Employer failed to appeal exclusion of its own statistical witness (Dr. Joan Haworth) on same grounds; her report may not be used on appeal to challenge district court's findings. It credited the 120 declarations of anecdotal witnesses in further support of commonality. The panel majority reaffirmed the principle -- common to class and individual Title VII cases -- that (consonant with the class's theory of the case) "subjective decision-making is a 'ready mechanism for discrimination' and that courts should scrutinize it carefully." The court held that it was unnecessary for a class to proffer a separate representative for each category of promotions to establish Rule 23(a) typicality: a "lack of a class representative for each management category does not undermine Plaintiffs' certification goal because all female employees faced the same discrimination." Regarding adequacy of representation, class may include supervisory and non-supervisory employees, but putative class members who were no longer Wal-Mart employees at the time Plaintiffs' complaint was filed do not have standing to pursue injunctive or declaratory relief. Back pay is monetary, not equitable, and does typically weigh against certification of a Rule 23(b)(2) class (although the district court did not abuse its discretion in certifying the class in this case).

Pittman v. Oregon, 509 F.3d 1065 (9th Cir. 2007). Panel: BERZON, Fisher, Barzilay. Claim on Appeal: § 1981 discrimination. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12 (b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Section 1981(c) does not create a private right of action against state agencies.

State of Alaska v. EEOC, 508 F.3d 476, 101 FEP 1665 (9th Cir. 2007). PANEL: NOONAN [WALLACE, concurring] [PAEZ, dissenting]. CLAIMS ON APPEAL: GERA/Title VII termination (race and sex). DISPOSITION BELOW: Appeal from agency determination that it could not adjudicate Eleventh Amendment immunity issue [plaintiff]. OUTCOME ON APPEAL: Reversed [defendant]. GROUNDS: In passing Government Employee Rights Act (GERA), 42 U.S.C. § 2000e-16a, which authorized the EEOC to adjudicate claims by policymakers and personal staff in state government, Congress did not validly abrogate the Eleventh Amendment. Although the legislation might be supportable as section 5 legislation under the Fourteenth Amendment, Congress failed to make the requisite findings of a present need in 1991 to prevent or remediate discrimination in the upper levels of state government and that court could not borrow findings from the 1972 amendments adding states to Title VII which are not narrowly focused on that group.

Beck v. Local 99 of the United Food and Commercial Workers Union, 506 F.3d 874, 101 FEP 1589 (9th Cir. 2007). PANEL: IKUTA, Hall, O'Scannlain. CLAIMS ON APPEAL: Title VII breach of duty of fair representation (sex). § 301 DFR claim (not discussed here). DISPOSITION BELOW: Judgment after a bench trial; $16,304 in lost wages, $125,000 in compensatory damagesfor emotional distress, $50,000 in punitive damages, and attorney's fees and costs [plaintiff]. OUTCOME ON APPEAL: Affirmed [plaintiff]. GROUNDS: Third prong of McDonnell Douglas test as applied to DFR claim has been superseded by Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), which held that a Title VII plaintiff need not show that the union had a negative animus toward the protected class. District court could draw the permissive inference of discrimination based on comparative evidence that the union more aggressively represented two men in matters involving rule infractions than two women (including plaintiff). District court did not err in finding that male and female employees were similarly situated 'in all material respects,' and that plaintiff was similarly situated to other male employees who received more favorable treatment from the same union representatives.

Metoyer v. Screen Actors Guild, Inc., 504 F.3d 919, 101 FEP 993 (9th Cir. 2007). Panel: NELSON, Rawlinson [BEA, dissenting]. Claim on Appeal: 1. Section 1981 breach of contract claim. 2. Section 1981 termination. 3. Section 1981 retaliation. 4. Cal. state law discrimination and retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. 4. Reversed [plaintiff]. Grounds: 1. Because case was being brought only under section 1981, novel question presented about whether mixed-motive defense would defeat liability or only limit relief. Court holds that the latter applies based on pre-1991 CRA case law in the circuit under Title VII. Although Price Waterhouse changed standard, amendment to Title VII (which ordinarily tracks section 1981) ought to apply. Failure to amend section 1981 at same time not determinative; nothing in plain language of section 1981 establishes mixed-motive defense. Nevertheless, summary judgment could be affirmed on alternative basis that there was no admissible evidence that a contract existed to place her in Title of National Director of Affirmative Action, owing to parol evidence rule. 2. Repeated racial comments by senior management over period of employment ("black people like to party and eat and not do their job," "they ought to be glad they have a job," "lazy and malingerers," "you talk more than other black people here. The rest of them are like . . . a tribe or something") and numerous unanswered complaints of race discrimination constituted circumstantial evidence of racial bias. Comments do not be specifically by decision-maker, or at same time as decision, or directed only at plaintiff. Evidence in record that other senior managers were influential in firing decision. 3. Direct and circumstantial evidence of retaliation for complaining about how blacks were treated and about allegedly fraudulent EEO-1 report submitted to EEOC. Employee was told to stop raising issues over managers' heads, was accused of trying to stir up complaints, became angry and told "I'm going to get that bitch." Employer failed to present sufficient evidence to establish mixed-motive defense. Although employee was accused of misdirecting $30,000 in grant money to family and business associates, defense undermined that other employees also engaged in questionable practices with same funds but were not disciplined. Genuine issue of material fact also presented on whether audit of funds was biased. 4. District court erred in finding that employee consented to dismissal of the state-law claims.

Nilsson v. City of Mesa, 503 F.3d 947, 101 FEP 901, 19 A.D. Cases 1418 (9th Cir. 2007). Panel: RAWLINSON, Gould, Covello. Claim on Appeal: 1. ADA failure to hire. 2. Ariz. state law failure to hire (sex, disability). 3. Title VII and state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Applicant waived ADA and section 1983 claims by agreeing, at time of application, to waiver of acts "in the course of the investigation, into [her] background, employment history, health, family, personal habits and reputation." 2. Claims waived because they were not made in charge. 3. Employee made out prima facie case that panel knew about her EEOC complaint. Evidence that city considered employee's litigation history not material, in view of uncontested evidence that employee failed psychological evaluation.

Forester v. Chertoff, 500 F.3d 920 (9th Cir. 2007). Panel: CALLAHAN, Nelson [BEA, dissenting]. Claim on Appeal: Title VII and ADEA promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under ADEA, employee may bypass administrative procedures and file civil action if the employee files a notice of intent to sue within 180 days of the act of discrimination and waits no fewer than 30 days to file lawsuit (29 U.S.C. § 633a(d)). Employees here misunderstood this to mean that the civil action had to be filed within 180 days and filed only nine days after filing notice. Although employee was not required to file within 180 days, and filed too soon, that did not affect district court's power because 30-day waiting period was not jurisdictional. Thus, district court had jurisdiction to grant employees equitable relief from compliance with waiting period. Panel awards relief on grounds that there was no prejudice to the agency and in the interests of justice (where much later filing would have been timely under the statue).

Hulteen v. AT&T Corp., 498 F.3d 1001, 101 FEP 449 (9th Cir. 2007). Panel: WARDLAW, Schroeder, Reinhardt, Hawkins, Graber, McKeown, Fletcher, Fisher, Gould, Paez, Berzon [Rymer, concurring in part II.B only][O'SCANNLAIN, Rymer, Bybee, Callahan, dissenting]. Claim on Appeal: PDA benefits. Disposition Below: Summary judgment for plaintiff class [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Awarding pension benefits calculated upon service dates that awarded pre-1979 pregnancy leave time less credit than comparable disability leave violated the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k). Each application of company policy constituted the continuation of a facially-discriminatory policy, thus governed by Bazemore v. Friday, 478 U.S. 385 (1986), rather than Ledbetter. Class members were "affected by pregnancy," under the express terms of the statute, when company calculated her retirement benefits, deliberately choosing a date that would deprive them of benefits received by those who were not 'affected by pregnancy' by excluding earlier pregnancy leave from the later calculation of benefits. Broad exemption of seniority systems from Title VII liability, under 42 U.S.C. § 2000e-2(h), superceded by specific and later-enacted language in the PDA that narrowed exemption as applied to pregnancy cases. Noting split with Sixth and Seventh Circuits.

Craig v. M&O Agencies, Inc., 496 F.3d 1047, 101 FEP 701 (9th Cir. 2007). Panel: BYBEE, Goodwin, Smith. Claim on Appeal: Title VII harassment (sex). State law tort (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee presented genuine issue of material facts about whether harassment was severe or pervasive, where interim president made occasional remarks about the plaintiff's body, once propositioned her over drinks, cornered her in a women's bathroom and assaulted her with open-mouthed kiss, and continued pursuing her 18 days after assault (culminating in four addition al instances of alleged harassment). Employee did not establish "tangible employment action" for vicarious liability based on vague threat that she would be terminated, where employee did not acquiesce to threat and other executives reassured her that she would keep her job. Employer did not establish its affirmative defense under Faragher/Ellerth. It did make out first prong, in that it immediately responded to complaints and abated harassment. But employee reported the harassment in a reasonable interval, 19 days after assault and thus reasonably availed herself of the corrective opportunities provided by the employer. Reasonable employee "may have hoped the situation would resolve itself without the need of filing a formal complaint, and she justifiably may have delayed reporting in hopes of avoiding what she perceived could be adverse-or at least unpleasant-employment consequences."

Payan v. Aramark Management Services Ltd. Partnership, 495 F.3d 1119, 101 FEP 243 (9th Cir. 2007). Panel: BYBEE, Klienfeld, Whaley. Claim on Appeal: Title VII harassment, discrimination (sex) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: When the parties do not know the date of receipt of EEOC right-to-sue letter by the charging party or her counsel, three-day presumption from date of mailing applies (noting split in circuits).

Poland v. Chertoff, 495 F.3d 1119, 101 FEP 243 (9th Cir. 2007). Panel: GOULD, Rawlinson [PAEZ, dissenting in part]. Claim on Appeal: ADEA retaliation and constructive discharge. Disposition Below: Judgment entered after bench trial; $339,130.75 back pay and benefits; fees [plaintiff]. Outcome on Appeal: Affirmed on liability vacated and remanded on remedy [defendant]. Grounds: District court did not clearly err in finding that transfer and demotion to non-supervisory position was causally linked to retaliation. Although agency pointed to supposedly independent investigation of employee, finding that he engaged in unprofessional misconduct, recorded supported inference that biased subordinate initiated inquiry against employee, panel reviewed lengthy memo written by subordinate, subordinate assembled witness list against employee, and volume of reports against employee arced upward after EEO complaint. Panel evaluates three theories of subordinate bias liability ("but for," "cat's paw," and influence), and adopts standard that biased subordinate "influenced or was involved in decision or decision-making process." (Noting split in circuits.) Although transfer was retaliatory, employee failed as a matter of law to establish constructive discharge (and district court clearly erred in holding otherwise). Ninth Circuit does not require employee to prove that employer created intolerable conditions with the intent to make the employee resign (noting split in circuits). Working conditions were not so severe as to make resigning a fitting response; employee stayed put for eight months before retiring, and employee never testified that he felt compelled to quit. Decision to retire was mixed with personal reasons. Because damage award was based on constructive discharge theory, case remanded for entry of new award, and leave to amend complaint to seek other remedies under Fed. R. Civ. P. 15(a). Fee award vacated, but may be reinstated if any relief is granted.

Walton v. U.S. Marshals Service, 492 F.3d 998 (9th Cir. 2007). Panel: SMITH, Goodwin, Fisher. Claim on Appeal: Rehabilitation Act termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: To state "regarded as" claim, employee must prove that (1) the employer believes that the employee has some impairment; and (2) subjectively believes that the employee is substantially limited in one or more major life activities, either with (a) direct evidence or (b) other evidence that the impairment imputed to the employee is objectively a substantially limiting impairment. Employee failed to establish that the service regarded the employee substantially limited in the major life activities of hearing, working or localizing sound, based on report showing employee had one functioning ear. Disqualification under the service's specific hearing standards and report of doctor who tested her not equivalent to evidence that employee cannot hear or work. Conclusory report by employee's expert that he interpreted service's medical report as stereotyping the employee's hearing not admissible to defeat summary judgment. Employee also fails to show that employer thought she was substantially limited in major life activity of work; she was excluded only from particular job at issue. Record of impairment claim fails for same reasons as above.

Noyes v. Kelly Services, 488 F.3d 1163, 100 FEP 1153 (9th Cir. 2007). Panel: MCKEOWN, Hug, Moskowitz. Claim on Appeal: Title VII promotion (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: Lack of adherence to the "fellowship" religious beliefs promoted by management represents a protected classification under Title VII. Employee denied promotion to Software Development Manager presented genuine issue of material fact about pretext, over employer's claim that other candidate was selected because he was the "right" choice and a "consensus" pick. District court erred in requiring employee to prove both that the proffered reason was false and that discrimination was the real reason. Evidence included that membership in preferred religious organization permeated the promotion process, that her qualifications were objectively superior, that other decision makers denied being part of the "consensus," that promoted employee had in the past benefitted from favorable treatment and statistics showing that promotions routinely favored fellowship members. District court also abused discretion by not modifying Rule 16(b) order to allow employee to depose a manager he failed to appear as scheduled. On remand, district court should reconsider admissibility of plaintiff expert.

Gambini v. Total Renal Care, Inc., 486 F.3d 1087 (9th Cir. 2007). Panel: SHADUR, Goodwin, Kozinski. Claim on Appeal: Wash. state law disability termination. FMLA claim (not discussed here). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: Employee (a contracts clerk at a health care clinic), diagnosed with bipolar disorder, revealed signs of irritability at work. Jury ought to have been instructed under Washington law that, for plaintiff diagnosed with bipolar disorder -- terminated for intemperate behavior during a performance review -- "conduct resulting from a disability is part of the disability and not a separate basis for termination." (In this instance, the LAD parallels the federal ADA.) Panel held that under prior circuit law and Washington state law, "where an employee demonstrates a causal link between the disability-produced conduct and the termination, a jury must be instructed that it may find that the employee was terminated on the impermissible basis of her disability."

Detabali v. St. Luke's Hospital, 482 F.3d 1199, 100 FEP 621 (9th Cir. 2007). Panel: SMITH, Gould, Covello . Claim on Appeal: Calif. state law discrimination and retaliation. Disposition Below: Dismissal of LMRA § 301 preemption grounds [defendant] . Outcome on Appeal: Reversed [plaintiff]. Grounds: Although claim required application of collective bargaining agreement (to determine whether employer legitimately required plaintiff-nurse to work outside of her "cluster"), this does not require interpretation of CBA, so state law claim was not preempted by LMRA. Case, removed to federal law, should be remanded to state court. Sanctions against plaintiff's attorney for repleading state law claims reversed.

Walton v. U.S. Marshals Service, 476 F.3d 723, 18 A.D. Cases 1705 (9th Cir. 2007). Panel: SMITH, Goodwin, Fisher. Claim on Appeal: Rehabilitation Act termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: To state "regarded as" claim, employee must prove that (1) the employer believes that the employee has some impairment; and (2) subjectively believes that the employee is substantially limited in one or more major life activities, either with (a) direct evidence or (b) other evidence that the impairment imputed to the employee is objectively a substantially limiting impairment. Employee failed to establish that the service regarded the employee substantially limited in the major life activities of hearing, working or localizing sound, based on report showing employee had one functioning ear. Disqualification under the service's specific hearing standards and report of doctor who tested her not equivalent to evidence that employee cannot hear or work. Conclusory report by employee's expert that he interpreted service's medical report as stereotyping the employee's hearing not admissible to defeat summary judgment. Employee also fails to show that employer thought she was substantially limited in major life activity of work; she was excluded only from particular job at issue. Record of impairment claim fails for same reasons as above.

Dukes v. Wal-Mart Inc., 474 F.3d 1214, 99 FEP 1285 (9th Cir. 2007). Panel: PREGERSON, Hawkins [KLEINFELD, dissenting]. Claim on Appeal: Title VII pay and promotion (sex). Disposition Below: Class certification granted [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Lawsuit challenges nationwide pay and promotion practices at some 3,400 stores, said to discriminate against a class of 1.5 million current and former women employees. The panel affirms on Fed. R. Civ. P. 23(f) appeal district court's finding that the record raised "an inference that Wal-Mart engages in discriminatory practices in compensation and promotion that affect all plaintiffs in a common manner." Numerosity not contested. Commonality established by evidence of company-wide corporate practices and policies, statistical evidence of gender disparities and anecdotal evidence. Panel affirms the admissibility (for Rule 23 purposes) of sociological evidence by Dr. William Bielby (social framework analysis) and statistical evidence by Dr. Richard Drogin demonstrating a company-wide bias against promoting and compensating women employees equal to men, on FRE 702 and 703 grounds; all challenges implicate weight rather than admissibility. Full Daubert analysis need not apply at class certification stage. Statistician's methodology acceptably explains why regional rather than store-level analysis correct. Chow test to determine whether data may be aggregated not required as a matter of law. Employer failed to appeal exclusion of its own statistical witness (Dr. Joan Haworth) on same grounds; her report may not be used on appeal to challenge district court's findings. It credited the 120 declarations of anecdotal witnesses in further support of commonality. The panel majority reaffirmed the principle -- common to class and individual Title VII cases -- that (consonant with the class's theory of the case) "subjective decision-making is a 'ready mechanism for discrimination' and that courts should scrutinize it carefully." The court held that it was unnecessary for a class to proffer a separate representative for each category of promotions to establish Rule 23(a) typicality: a "lack of a class representative for each management category does not undermine Plaintiffs' certification goal because all female employees faced the same discrimination." Regarding adequacy of representation, class may include supervisory and non-supervisory employees. The panel majority held that injunctive and declaratory relief may predominate in a Title VII case, for purposes of Rule 23(b)(2), even where the proposed equitable relief is monetary (i.e., back pay). It thus split (by implication) with the Fifth and Sixth Circuits, two courts that have more or less categorically barred certification of Title VII cases under Rule 23(b)(2). That some employees in class are former employees does not preclude finding that primary intent of plaintiffs as a whole is injunctive. Request for punitive damages not inconsistent with Rule 23(b)(2) certification; district court allowed individuals to opt-out of punitive damages. Back pay is equitable, consistent with Rule 23(b)(2) certification The panel majority held that a Teamsters model pattern-or-practice case does not require individualized damage hearings. It affirmed the class's proposed use of statistical modeling to estimate and allocate monetary relief, and determine shortfalls of promotions. The 1991 Civil Rights Act channeled disparate treatment claims into "single" (42 U.S.C. § 2000e-2(a)and "mixed" (42 U.S.C. § 2000e-2(m)) motive claims; choice of which theory to pursue belongs to the employee. Panel affirmed district court's plan to award -- on a class-wide basis -- punitive damages under Title VII. It rejects suggestion that 42 U.S.C. §1981a(b)(1) or due process compel individual determinations of punitive awards. Class award could, be allocated to absent class members (1) who can demonstrate an injury and (2) in proportion to whatever damages they personally suffered. Class's cross-appeal to expand back-pay relief for the promotion class denied. The panel affirmed the decision to confine back-pay individual class members who presented an objective interest in promotion.

Syverson v. IBM Corp., 472 F.3d 1072 (9th Cir. 2007) . Panel: BERZON, Rawlinson, Callahan. Claims on Appeal: ADEA termination. Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under Older Workers Benefit Protection Act, 29 U.S.C. § 626(f), release held not enforceable where agreement was not written in a manner calculated to be understood by participants, as required by the OWBPA (citing 29 C.F.R. § 1625.22(b)(4) and Tender Back regulations). Covenant not to sue excluded ADEA claims, but release did not. Suggesting to employee that they consult lawyer before signing does not satisfy "manner calculated" requirement. Because agreement did not satisfy threshold statutory requirement, no occasion for panel to consider application of "totality of the circumstances" test. Thomforde v. IBM Corp., 406 F.3d 500 (8th Cir. 2005), decided the same way, did not support offensive nonmutual issue preclusion; although prior decision was final, no other prior judgments favored IBM's position (except the prior overruled district court decisions), and IBM was fully motivated to pursue the defense in both cases, the Thomforde case possessed a unique factual wrinkle (IBM refused to tell Thomforde what it meant by the language).

Walsh v. Nevada Dep't of Human Resources, 471 F.3d 1033, 18 A.D. Cases 1521 (9th Cir. 2006) . Panel: NOONAN, Cox, Paez. Claim on Appeal: ADA reasonable accommodation, harassment and discrimination . Disposition Below: Judgment on the pleadings, Fed. R. Civ. P. 12(c) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee's monetary claim was barred by immunity (Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001)). Individual claim against supervisors not recognized under ADA. injunctive claim was not preserved in the complaint. In her prayer for relief, employee made an explicit claim for "injunctive relief to force the defendant to adopt and enforce lawful policies regarding discrimination based on disability." While this statement meets Rule 8(a)(3)'s requirement of a "demand for judgment," Nonetheless, employee's single reference to injunctive relief is unsupported by any facts or allegations regarding the Department's failure to adopt or enforce discrimination policies. Employee made no assertions that the discrimination she suffered was caused by the failure to enforce a state policy, or that such discrimination could be cured by an official policy.

Freitag v. Ayers , 468 F.3d 528 (9th Cir. 2006). Panel: REINHARDT, Noonan, Hawkins. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation First Amendment claims (not discussed here). Disposition Below: 1. Judgment after a jury trial ($500,000 in economic damages, $100,000 in non-economic damages on all claims; injunctive relief) [plaintiff]. 2. Judgment after a jury trial (back pay and benefits) [plaintiff]. Outcome on Appeal: 1. Affirmed, but damages remanded [plaintiff]. 2. Affirmed [plaintiff]. Grounds: 1. Harassment by non-employees (e.g., inmates) actionable against employer where it did not take immediate corrective steps when it knew or should have known of the conduct (citing 29 C.F.R. §1604.11). Sufficient evidence supported verdict that prison did not take appropriate corrective steps to prevent female employee's exposure to inmate's crude taunts and masturbation. Accepting job in prison does not constitute evidence that employee welcomed conduct. Even if employer was credited with latest date that employee complained, the remaining several incidents alone were severe or pervasive; even one incident might be enough. State's Inspector General's report and addition al expert witness established that there were means that the prison could reasonably have used to reduce employee's exposure to inmate's behavior consistent with correctional requirements; report admissible as FRE803(6) and (8) business and public record. Although evidence was sufficient to support damages, remedy issue was to be remanded to district court in light of instructional issue on First Amendment claim. Because there was a prospect (on administrative appeal) that employee would obtain reinstatement, injunctive relief was not moot. 2. Evidence was sufficient to establish that employee's complaints about working conditions constituted opposition to sexual harassment and prison's failure to take action.

O'Donnell v. Venco, Inc., 466 F.3d 1104, 99 FEP 122 (9th Cir. 2006) . Panel: Per Curiam (Canby, Thompson, Hawkins). Claim on Appeal: 1. ADEA and Title VII discrimination. 2. EPA claim Disposition Below: 1. Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. 2. Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Dismissal for failure to prosecute under Fed. R. Civ. P. 41(b) not a violation of the bankruptcy stay for defendants, because it was not a "continuation" of the proceedings (11 U.S.C. § 362(a)(1)). Whether magistrate erred in dismissing first complaint waived by failure to file notice of appeal. Regarding second complaint, it was filed well more than 90 days after original right-to-sue letter. There can be no relation back to prior dismissed complaint. No abuse of discretion in denying tolling (because time had already expired on right-to-sue letter by the time the first complaint was dismissed) or estoppel (defendant took no action to prevent plaintiff from filing). No laches defense to motion to dismiss, despite that it was filed over two years after filing of second complaint. 2. Equal Pay Act claim was timely because amendment related bck to the filing of the second complaint under Fed.. R. Civ. P. 15(c)(2). EPA claims were equitably tolled because bankruptcy stay prevented employee from filing claim, a situation created by employer's filing in bankruptcy. Period from commencement of stay to 30 days after notice of termination of stay thus tolled. Each paycheck created its own violation, allowing plaintiff to reach back 2 to 3 years.

Bates v. United Parcel Service, Inc., 465 F.3d 1069, 18 A.D. Cases 897 (9th Cir. 2006). Panel: BERZON, Fletcher, Gibson. Claim on Appeal: 1. ADA and Calif. state law hiring. 2. California's Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code § 51. Disposition Below: 1. Judgment after a bench trial (injunctive relief) [plaintiff]. 2. Judgment after a bench trial (injunctive relief) [plaintiff]. Outcome on Appeal: 1. Affirmed [plaintiff]. 2. Reversed [defendant]. Grounds: 1. Class challenge to facially discriminatory "forced whisper" policy to bar deaf/hard-of-hearing drivers, applying U.S. DOT standard for vehicles with a "gross vehicle weight" of 10,001 or more pounds to lighter trucks. Court found liability, and interlocutory appeal was taken by company from entry of injunction. Policy violates 42 U.S.C. § 12112(b)(6) qualification standards. Teamsters model does not apply to case involving facially discriminatory policy. District court applied correct standard for "qualified individual" under ADA, by not requiring plaintiff at prima facie stage to prove that he can drive "safely," a burden that belongs to the employer under business necessity. Employee maintained standing by showing that he was otherwise qualified for the position other than not meeting the "forced whisper" standard. Although employee must be "qualified individual" under ADA, employee does not have to prove that he meets facially-discriminatory qualification. Court notes split in circuit regarding whether "direct threat" applies on a safety issue related to performance of job, noting decisions in First and Tenth Circuits. That employee was not currently employed in a position from which he can bid for a driving job not material, because the policy deterred him from remaining in a driver eligible position. Employer failed to prove business necessity defense; employer would have been obliged to demonstrate that employees failing the "forced whisper" standard would have posed a greater safety risk than already accepted by the company. Evidence was inconclusive as to whether deaf drivers have an increased risk of accidents: studies relied upon by UPS suffered methodological flaws, human factors not persuasive because they depended on the impressions of hearing drivers; expert testimony was unpersuasive. Evidence that deaf drivers in the aggregate are involved in more accidents that hearing drivers not sufficiently individualized, such as factoring in accident history or amount of hearing loss. UPS also failed to prove that there were no practical criteria for determining which drivers posed a heightened risk, such as considering driving histories; UPS never tried to train or accommodate a deaf driver or even studied the possibility. Injunction requiring UPS to drop DOT standard and perform individual assessments upheld. 2. Unruh Act does not apply to employment actions.

Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 2006). Panel: CANBY, Thompson, Hawkins. Claim on Appeal: 1. Title VII retaliation. 2. §§ 1981, 1985 termination against individual defendants. Disposition Below: 1. Dismissal under Fed. R. Civ. P. 12(b)(1) [defendant]. 2. Dismissal under Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Corporation founded by tribe to operate casino enjoyed sovereign immunity, which was not unequivocally waived by employee handbook that promised "equal opportunity employment." 2. Individual defendants were not cloaked in tribal immunity.

Bass v. County of Butte , 458 F.3d 978, 18 A.D. Cases 419 (9th Cir. 2006) . Panel: GRABER, Schroeder, Duffy . Claims on Appeal: California's Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code § 51 (governing discrimination in public accommodations) and Disabled Persons Act ("DPA"), Cal. Civ. Code §§ 54, 54.1 . Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although California Assembly amended the Unruh Act and the DPA to provide expressly that "[a] violation of the right of any individual under the Americans with Disabilities Act of 1990 shall also constitute a violation of this section," without exception, panel holds that amendment was not intended to incorporate ADA Title I standards into these public accommodation statutes.

MacDonald v. Grace Church Seattle, 457 F.3d 1079, 98 FEP 950 (9th Cir. 2006). Panel: THOMPSON, Tashima, Callahan. Claims on Appeal: Title VII harassment (sex) and retaliation. Disposition Below: Judgment on the pleadings [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Proper time for employee to file a charge with the EEOC in this case was limited to 180 days, not 300 days. 42 USC § 2000e-5(e)(1). Although Washington a deferral state (by virtue of the Washington Law Against Discrimination (LAD)) recognized without exception under 29 C.F.R. § 1601.71(b), it expressly exempts "nonprofit religious organizations." This religious exclusion renders the Washington Commission -- for purposes of this claim -- not a deferral agency. Court eschews reliance on 29 C.F.R. § 1601.71(b), finding that the regulation is not a comprehensive listing of all possible exceptions. "As a result, the EEOC's designation in 29 C.F.R. § 1601.74(a) of the Washington Commission as a FEP agency without exception as to any charge is not determinative of whether the Washington Commission had subject matter jurisdiction over MacDonald's charges."

Dark v. Curry County, 451 F.3d 1078, 18 A.D. Cases 97 (9th Cir. 2006). Panel: O'SCANNLAIN, Nelson, Burns. Claims on Appeal: ADA and Or. state law termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Reversed [defendant]. Grounds: Employee with epilepsy presented genuine issue of material fact about both liability and affirmative defense of direct threat. Disputed issues of fact attend the employer's decision to terminate. Employer claimed it was because employee got behind the wheel of a pickup truck shortly after suffering an aura (precursor to a seizure) and drove off the road, but termination letter does not state that reason, instead stressing employee's disability status. That county board later generated a different reason was immaterial, as decision had already been made before the board had an opportunity to approve it. At any rate, termination because of behavior caused involuntarily by the disability is form of disability discrimination. Also, it is sufficient that one motivating factor was disability, even if fact-finder credits subsequent reason. Also, record presents factual disputes about whether misconduct was a pretextual explanation of termination (e.g. was first subjected to medical examination rather than fired right away, termination letter referred to "medical condition," explanation given was concern for future accidents, similar accidents were not disciplined). While there was no genuine issue of material dispute about "essential functions" of job, as driving trucks and other heavy equipment was 65% of job, there was issue about whether the employer failed to extend a reasonable accommodation. Restructuring of job was not compelled by ADA, but employer was required to consider whether there are any current or anticipated absences in jobs that the employee could fill (county considered only current vacancies). Moreover, it might have been a reasonable accommodation for the employee to use accumulated sick leave or unpaid leave to recover from latest event (noting split in circuits about availability of indefinite leave to bring disability under control). Direct threat defense governed by same analysis; genuine issue of material fact whether affording accommodation would have mitigated alleged direct threat.

Moran v. Selig, 447 F.3d 748, 97 FEP 1825 (9th Cir. 2006). Panel: REINHARDT, Rawlinson, Fogel. Claims on Appeal: Title VII benefits (race). Battery claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Major League Baseball's payment of retiree medical and income to former players of the Negro Leagues, without comparable payment to retired MLB players, not a violation of Title VII. Even if the payments to Negro League players could be considered a term or condition of employment (as opposed to a charitable endeavor), claim would fail because eligible players were not similarly situated (i.e. black players were barred from playing in the major leagues, and thus from eligibility for MLB retiree benefits).

Berry v. Dep't of Social Services, 447 F.3d 642, 97 FEP 1833 (9th Cir. 2006 ). Panel: CALLAHAN, Farris, Tashima. Claims on Appeal: 1. Title VII reasonable accommodation (religion). 2. Title VII disparate treatment (religion). First Amendment claim (not discussed here). Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employer did not deny reasonable accommodation to evangelical Christian. While employer allowed employees to discuss religion among themselves, it avoided possible Establishment Clause entanglements by forbidding such discussion with agency clients or their families. Employer allowed employees to display religious items in their work stations, except where their viewing by clients might imply endorsement of the religious message. 2. The employer did not prohibits employees from holding prayer meetings in the common break room or outside, but declined to open the Red Bluff Room (a conference room) to employee social or religious meetings as such use might convert the conference room into a public forum. No proof that similarly situated groups were treated differently; alternatively, desire to keep room from lapsing into public forum was legitimate, non-discriminatory reason.

Jesperson v. Harrah's Operating Co., 444 F.3d 1104, 97 FEP 1473 (9th Cir. 2006). Panel: SCHROEDER, Rymer, Silverman, Tallman, Clifton, Callahan, Bea [PREGERSON, Kozinski, Graber, W. Fletcher, dissenting] [KOZINSKI, Graber, W. Fletcher, dissenting] . Claims on Appeal: Title VII challenge to grooming policy (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Harrah's launched a "Personal Best" appearance standard that required woman servers to be made-up for work (but barred men from using make-up at all). Plaintiff neither complied with the directive, nor located another position to which "Personal Best" did not apply. Plaintiff failed to create genuine issue of material fact that "Personal Best" violated Title VII, either on a theory of unequal burdens or stereotyping. Where grooming standards are alleged to impose "unequal burdens" by sex, court must weigh relative burdens that particular requirements impose on workers of one sex against the distinct requirements imposed on workers of the other sex. Evaluating entire "Personal Best" policy, employee presented no evidence that the added cost or burden of wearing make-up imposed a discriminatory term or condition on female employees; court was not obliged under FRE201 to take judicial notice of this issue. While a grooming policy may be a form of sex-stereotyping prohibited under the Price Waterhouse case, court holds that plaintiff did not present evidence that policy was based on sex stereotypes, but only averred as to her own personal distaste for cosmetics.

Josephs v. Pacific Bell, 443 F.3d 1050, 17 AD Cases 1465 (9th Cir. 2006) Panel: LEAVY, Graber [CALLAHAN, dissenting]. Claims on Appeal: ADA and Cal. state law denial of reinstatement. Disposition Below : Judgment following a jury trial [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds: In "regarded as" case, jury found that the employer failed to reinstate an employee because it regarded him as mentally ill, owing to his prior involuntary commitment in civil and penal facilities for the mentally ill (and misdemeanor conviction for assaulting police officer). Although denial of reinstatement is a separately actionable claim that must be exhausted in an EEOC charge, plaintiff's claim survived because (1) claim was equitably tolled by EEOC representative misleading the employee (who was pro se) into believing that he needed an attorney before he could file a charge; (2) in this case, failure to reinstate was "unquestionably" related to his termination claim because they both arose out of the same incident. Evidence that employer's agents said that employee might not be employable because he spent time in a "mental ward" and might "go off" on a customer, and reviewed documents that labeled employee as "mentally disordered." Employer regarded employee in particular as significantly limited in the major life activity of working, because it could find no job within its organization that employee could fill and wanted to "eliminate the possibility" that any other employer would hire him. Employee was qualified as service technician; nothing in official job description disqualified violent offenders and at least one other technician had been convicted of a felony domestic violence offense. Evidence of grievance proceeding involving employee's attempt to return to work, and three co-workers' grievances and settlements (who had been accused of resume fraud, like plaintiff), were admissible notwithstanding FRE408. Language of mixed-motive instruction upheld over objection that it required employer to prove "but for" standard on its affirmative defense; jury necessarily found that employer would not have refused to reinstate employee for other reasons.

Hulteen v. AT&T Corp., 441 F.3d 653, 97 FEP 1025 (9th Cir. 2006). Panel: PLAGER, Trott [RYMER, dissenting]. Claims on Appeal: PDA benefits. Disposition Below: Summary judgment for plaintiff [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: No PDA/Title VII violation in awarding pension benefits calculated upon service dates that award pre-1979 pregnancy leave time less credit than comparable disability leave. The effect of demanding present-day equalization of leave time for the purpose of pension payments would make the PDA retroactive or else greatly extend that concept of continuing violation.

Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 97 FEP 930 (9th Cir. 2006). Panel: GOULD, Fisher [BEA, concurring]. Claims on Appeal: 1. Title VII, § 1981 and Ore. demotion (race). 2. Title VII and Wash. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant] Grounds: 1. Plaintiff, an African-American Chief Operating Officer who was demoted and eventually terminated from a financial institution. The district court did not err in refusing to reopen discovery to allow Cornwell to obtain a deposition of an employee who heard his superior (named Sharp) allegedly used an offensive racial slur to refer to a black employee (not Cornwell). Though allowing that such evidence was "strongly" probative of intent, the court concluded that the employee had not been diligent enough during discovery to commit this fact to sworn testimony. While the employer proffered a legitimate, non-discriminatory explanation of the demotion (to refocus the plaintiff on correcting the bank's lending business), the panel finds that the record contains evidence undermining the credibility of that explanation, including that (1) Cornwell was the sole African-American executive, (2) Sharp supposedly singled Cornwell out for exclusion from management meetings and decisions, (3) Sharp invited Cornwell to look for another job elsewhere when the plaintiff complained about being excluded, (4) a promotion went to a demonstrably less qualified white employee, and (5) management allegedly failed to investigate Cornwell's discrimination complaints. 2. No evidence that (1) supervisor who made demotion decision knew about employee's complaint of harassment complaint, or (2) complaint made seven months earlier supported causal link to eventual termination.

Kroske v. U.S. Bank Corp., 432 F.3d 976, 97 FEP 122 (9th Cir. 2006) . Panel: PAEZ, Tashima, Callahan. Claims on Appeal: Wash. state law termination (age). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: In calculating amount in controversy for removal, district court did not err in estimating potential emotional distress damages at $25,000. State act not preempted by National Bank Act, 12 U.S.C. § 24(Fifth) (the dismiss-at-pleasure provision), noting a split in the circuits with the Sixth Circuit. Also holding that dismiss-at-pleasure section is implicitly repealed in part by ADEA.

Hardage v. CBS Broadcasting Inc., 436 F.3d 1050 (9th Cir. 2006) . Panel: WALLACE, Silverman [PAEZ, dissenting in part]. Claims on Appeal: 1. Title VII and Wash. state law harassment (sex). 2. Title VII and Wash. state law retaliation. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Male employee of television station allegedly harassed by female manager could not establish that he suffered an adverse employment action; no constructive discharge because employee remained on job five months after harassment ceased, and allegedly retaliatory performance memorandum was supported by employee's admitted insubordination and was otherwise unconnected to harassment. Under Ellerth/Faragher defense, employer maintained anti-harassment policy, employee did complain and harassment ceased. Employee twice requested that he about allowed to handle situation personally, and was vague about sexual nature of manager's advances. Employer was not obliged to investigate complaint over his express wishes; nor was it require to act prior unspecific complaints or apparently mutual sexual banter. Employee also unreasonably failed to take advantage of preventative measures by waiting six months to fully report the harassment. 2. Although adverse performance rating and 30-day probation was adverse employment action, there was no causal link to harassment complaints where actions were indisputably supported by non-retaliatory factors (insubordination, decline in sales numbers). Snide remarks by manager did not add up to severe or pervasive harassment.

Rivera v. Baker West, Inc., 430 F.3d 1253, 97 FEP 4 (9th Cir. 2005). Panel: BYBEE, Tallman, Bea. Claims on Appeal : Title VII harassment and discrimination. Disposition Below : Motion for involuntary dismissal [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Employer did not breach settlement agreement, which provided for "lawfully required withholding," by withholding $10,000 federal income tax and $3,060 FICA, where none of the alleged claims qualified for exclusion as physical injuries under 26 U.S.C. § 104(a)(2). Settlement agreement provided expressly for withholding, parties allocated no sums for physical injury or sickness, settlement appeared to be for back pay claims, and employer might have been liable if it did not withhold such amounts (26 U.S.C. § 3402(a)(1)).

EEOC v. United Parcel Service, 424 F.3d 1060, 17 A.D. Cases 129 (9th Cir. 2005). Panel: GRABER, Kleinfeld, Hawkins . Claims on Appeal: 1. Case #1: Calif. state law hiring (disability). 2. Case #2: Calif. state law hiring (disability). Disposition Below: 1. Partial summary judgment for plaintiff [plaintiff]. 2. Judgment after a bench trial [defendant]. Outcome on Appeal: 1. Affirmed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Applicants for position of light truck drivers were limited in the major life activities in seeing and working. (California FEHA -- in contrast to the ADA -- requires just a limitation, rather than a "substantial limitation," and working is recognized by California state law expressly as a "major life activity.") 2. Employer proved the FEHA safety-of-others defense as a matter of law to defend its exclusion of monocular persons from employment as light truck drivers. Defense provides that the employer avoids liability if the employee "cannot perform the essential functions of the position in question in a manner which would not endanger the health or safety of others to a greater extent than if an individual without a disability performed the job." Upon review of the record, court found that "potential for endangerment of human life justifies safety-based restrictions even when the risk of occurrence is modest."

Dominguez-Curry v. Nevada Transportation Dep't, 424 F.3d 1027, 96 FEP 744 (9th Cir. 2005). Panel: PAEZ, Thomas [CALLAHAN, dissenting]. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII promotion (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Employee presented triable issue of fact about whether manager's acts of harassment were severe or pervasive. He allegedly made numerous biased remarks about women in the workplace (e.g. they have no business in construction, he would not hire women) and sexually-explicit jokes. Contested issue of fact about frequency of comments, despite that plaintiff could not specifically quantify or date comments with particularity. District court also made erroneous credibility determinations against plaintiff and neglected evidence of co-workers about manager's comments. 2. Manager's repeated comments that he would not hire a woman and that women did not belong in construction were direct evidence of discrimination, even if they did not refer directly to the plaintiff. Evidence that manager said he was going to hire a "guy," even if ambiguous, must be read in a light most favorable to plaintiff, especially against a background of more specific sexist comments. Moreover, although manager was no ultimate decision maker, record presented triable issue of fact about his influence over the final decision. Even if it were uncontested that the male employee promoted had superior qualifications, employer could still be held liable for mixed-motive liability if sex was a motivating factor.

EEOC v. National Education Assoc., 422 F.3d 840, 96 FEP 556 (9th Cir. 2005). Panel: GOODWIN, Brunetti, Fletcher. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: EEOC presented triable issue of fact that harassment alleged was motivated "because of . . . sex." While manager's hostile acts were not overtly sex- or gender-related, summary judgment record established that his bullying behavior (invading employees' space, screaming, foul language and threatening physical gestures) was especially focused on female employees. Court holds that (1) evidence of disparate, subjective effects of harassment on male and female employees is relevant; and (2) fact that workplace has unbalanced distribution of men and women, and some men are also subject to harassment, does not defeat a showing of disparate treatment. Issue of liability of national union for misconduct occurring at a local affiliate remanded for consideration.

Porter v. California Dept. of Corrections, 419 F.3d 885 (9th Cir. 2005). Panel: CALLAHAN, Schroeder, Tallman. Claims on Appeal: 1. Title VII harassment (sex) 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Under Morgan, supervisor's decision to deny plaintiff a transfer during the 300 days prior to the filing of the charge may constitute a tangible employment action (although record was unclear about whether transfer would have involved significantly different responsibilities) and thus presents a genuine issue of material fact about whether the harassment claim continued. Although alleged harasser was not supervisor at the time of the harassment, but only at the time of the alleged retaliation, Ellerth/Faragher extends to "other person acting with the authority of the company," including (as in this case) agent who started out as co-worker but later became supervisor. Panel leaves unresolved whether quid pro quo liability may exist when harasser who was not a supervisor at the time of the events is promoted over plaintiff and then seeks retribution. Genuine issue of material fact presented whether reason for transfer was pretextual, in light of deviations from standard operating procedures in cancelling already-approved transfer. While discrete acts (refusing to grant vacation days, disciplinary acts, negative performance evaluations) may not be aggregated with non-discrete acts (propositioning, name-calling, glaring, insults) to constitute harassment, there were sufficient non-discrete acts by two agents to present a triable issue of fact. Also a genuine issue of material fact whether there was causal link between more recent acts of harassment and harassment that were otherwise several years' time-barred. 2. Although retaliatory act (denial of transfer) followed harassment by several years, it was not necessary under Breeden (to prove causal link) that the events occurred in close temporal proximity, where other evidence supplied inference (e.g., alleged harasser only first found himself in a position to retaliate when he was promoted over plaintiff, and he made remark indicating that he would have horned a request for a transfer for anyone but the plaintiff). Genuine issue of material fact presented whether reason for transfer was pretextual, in light of deviations from procedures noted above.

Galdamez v. Potter, 415 F.3d 1015, 96 FEP 102 (9th Cir. 2005). Panel: HUG, Berzon, Bybee. Claims on Appeal: 1. Title VII retaliation. 2. Title VII discrimination (race and national origin). 3. Title VII harassment (race and national origin). Disposition Below: 1. Denial of motion to amend [defendant]. 2. Judgment after a jury trial [defendant]. 3. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Reversed [plaintiff]. Grounds: 1. Failure to list retaliation in final pretrial order held to waive claim, where essential evidence was already known to plaintiff before pretrial order was filed. 2. Mixed motive instruction was given at trial, which inquired whether national origin was "a" motivating factor. Any ambiguity was cleared up on response to juror's note on the instruction. Form of special verdict not erroneous. 3. District court as a matter of law in denying an instruction that the Postal Service could be held liable for inaction against harassment by customers and community members. Jury was misinstructed that the employee had to show that the employer's failure to act was motivated by unlawful bias. That plaintiff was postmaster of her station did not mean that employer was relieved of her responsibility to prevent harassment. Evidence viewed in favor of plaintiff supported instruction, where she was verbally harassed by customers about her race, "culture," and accent over three years. Harassment included anonymous threats of injury and death (warned it was a "redneck" town, evoking mob violence, and "everyone" would get together to "kill her"). Evidence pointed to severe of pervasive harassment. Moreover, while employer offered employee a transfer, at the same time took disciplinary action against the employee and avowed that they had no obligation to investigate and told employee to "grin and bear it."

El-Hakem v. BJY Inc., 415 F.3d 1068, 96 FEP 84 (9th Cir. 2005). Panel: RAWLINSON, Nelson, Schwartzer. Claims on Appeal: Section 1981 harassment. State wage claim (not discussed here). Disposition Below: Judgment after a jury trial ($15,000 compensatory, $15,000 punitives) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Supervisor refusing to call Arab employee by his proper name, calling him "Manny" and "Hank" over repeated objections (at weekly meetings and periodic e-mails), stated a valid claim for pervasive racial harassment. While jury found liability only against supervisor for harassment, district court did not err pot-trial in holding employer vicariously liable for supervisor's conduct as a matter of law; district court originally erred in failing to give vicarious liability instruction, Title VII and section 1981 presume vicarious liability, defendant did not argue otherwise and record was not in dispute that supervisor was acting within the scope of his employment. District court did not abuse discretion by awarding full fees and not apportioning them between section 1981 claim and state wage claim, where latter was modest and did not occupy much time.

Coghlan v. American Seafoods Co., 413 F.3d 1090, 95 FEP 1825 (9th Cir. 2005). Panel: O'SCANNLAIN, Leavy, Bea. Claims on Appeal: Title VII failure to rehire (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff, a fisherman, had served as a master on fishing vessels for the company in prior seasons, 1997-2000, but was passed over as master in 2002, and offered only the inferior position of mate. The same manager, over successive seasons, made the decision both to promote the plaintiff to master and (eventually) to knock him down to mate. Plaintiff and two others, also replaced, were Americans; their replacements were Norwegian. Assuming that plaintiff made out prima facie case, he did not establish genuine issue of material fact about pretext. Regarding same actor inference, panel holds that "when the allegedly discriminatory actor is someone who has previously selected the plaintiff for favorable treatment, that is very strong evidence that the actor holds no discriminatory animus, and the plaintiff must present correspondingly stronger evidence of bias in order to prevail" on the third stage of the McDonnell Douglas test.

Head v. Glacier Northwest Inc., 413 F.3d 1053, 16 A.D. Cases 1606 (9th Cir. 2005). Panel: SCHWARTZER, Rawlinson [NELSON, concurring]. Claims on Appeal: 1. ADA and Ore. state law termination, disability or record of disability. 2. ADA and Ore. state law termination, perceived disability and retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. District court erred by requiring employee with depression and bipolar disorder to present expert testimony or comparative evidence to create a genuine issue of material fact regarding the impairment of a major life activity. Sleeping, interacting with others, thinking and reading are all major life activities. Plaintiff's own testimony on each issue was sufficient to present a genuine issue. 2. District court did not err in excluding FRE701 lay opinion testimony about cause or equipment failure. District court did err in using causation instruction that required jury to find that termination was "because of" disability. Plaintiff need not show that disability was sole cause for decision; "motivating factor" standard is appropriate. Analogizing to Title VII and Desert Palace v. Costa, jury should be allowed to find that disability is one reason, because record reflected evidence that request for accommodation was a factor in discharge. Denial of proper mixed motive instruction was prejudicial.

Ingle v. Circuit City, 408 F.3d 592, 95 FEP 1290 (9th Cir. 2005). Panel: PREGERSON, Thompson, Wardlaw. Claims on Appeal: Federal and state discrimination. Disposition Below: Motion to compel arbitration denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Refusing to reconsider earlier holding denying arbitration in light of EEOC v. Luce Howard, 345 F.3d 742 (9th Cir. 2003) (en banc). Defendant sanctioned under FRAP 38 for frivolous appeal.

Lutz v. Glendale Union High school, 403 F.3d 1061, 16 A.D. Cases 1031 (9th Cir. 2005). Panel: KOZINSKI, W. Fletcher, Bybee. Claims on Appeal: ADA, Rehabilitation Act and Ariz. state law termination. Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Plaintiff waived right to jury determination of liability, and judge thus erred in trying entire case to jury. After her case was removed, plaintiff failed to make jury demand under Rule 38(b), nor did she follow state procedure to demand jury that would have satisfied Rule 81(c). Although plaintiff placed jury demand in prayer for relief, that demand was specifically limited to awarding back pay and compensatory damages, not determining liability. Adding jury demand to amended complaint did not restart clock under Rule 38(b), even if plaintiff added new counts, wher the addition al counts simply restated the same theory under different statutes. Plaintiff could not rescue demand under Rule 39(b), because judge never exercised discretion to order a jury trial, and such an order under the circumstances would have been an abuse of discretion. On remand, judge can enter findings based on record already presented at trial. If judge finds liability for plaintiff, it does not violate Seventh Amendment to enter jury verdict amount. Jury's determination of back pay under any of the statutes invalid, because there was no jury trial permitted for such equitable claims; 1991 Act did not convert back pay into legal remedy. District court on remand should disregard inadmissible evidence concerning board's alleged violations of disciplinary rules. Judge did not abuse discretion in limiting number of witnesses or time to present case, or in denying sanctions against the plaintiff.

Mondero v. Salt River Project, 400 F.3d 1207, 95 FEP 577 (9th Cir. 2005). Panel: ALARCÓN, Siler, Silverman. Claims on Appeal: Title VII training (sex). Disposition Below: Summary judgment (defendant). Outcome on Appeal: Affirmed (defendant) . Grounds: Female employee did not present genuine issue of material fact about whether elimination of trial program to allow employees functioning as servicemen to obtain training and be paid at journeyman's scale. Evidence that one foreman commented about a woman "doing a man's job" not direct evidence because he was neither a decision maker, nor was there any evidence that his thoughts were communicated to superiors. Slight variations in employer's explanation for decision not evidence of pretext.

EEOC v. Peabody WesternCoal Co., 400 F.3d 774, 95 FEP 588 (9th Cir. 2005). Panel: W. FLETCHER, Hug, Alarcón. Claims on Appeal: Title VII Navajo hiring preference and records-keeping (42 U.S.C § 2000e-8(c)). Disposition Below: Summary judgment (defendant). Outcome on Appeal: Reversed (plaintiff). Grounds: EEOC not barred on grounds of nonjusticiable political question or Eleventh Amendment immunity from suing Navajo nation, which leased mines to extractor but imposed a Navajo hiring preference that precluded the hiring of non-Navajo Indians. Court also erroneously failed to act on records-keeping claim when it dismissed rest of suit.

Leonel v. American Airlines, Inc., 400 F.3d 702, 16 A.D. Cases 897 (9th Cir. 2005). Panel: FISHER, Cudahy, Graber. Claims on Appeal: ADA and Calif. state law medical inquiry. State constitutional law claim (not discussed here). Disposition Below: Summary judgment (defendant). Outcome on Appeal: Reversed (plaintiff). Grounds: Genuine issue of material fact whether employer violated medical inquiry provisions under 42 U.S.C. §§ 12112(d) (and its California state counterpart) by requiring that employees who received "conditional offers" submit to medical tests. (Plaintiffs were three candidates for flight attendant jobs who were HIV positive.) Defendant's offers to the appellants were by their terms contingent not just on the appellants successfully completing the medical component of the hiring process but also on the completion of a critical non-medical component: undergoing background checks, including employment verification and criminal history checks. Case remanded to determine whether the defendant could demonstrate it could not reasonably have completed the background checks before initiating the medical examination process.

Obrey v. Johnson, 400 F.3d 691, 95 FEP 531 (9th Cir. 2005). Panel: BYBEE, Brunetti, Graber. Claims on Appeal: Title VII promotion (race). Disposition Below: Judgment entered after jury trial (defendant). Outcome on Appeal: Reversed (plaintiff). Grounds: District court committed reversible error in individual pattern-or-practice suit by Native Islander by excluding the following evidence: (1) statistical report showing correlation of race and promotion at worksite; (2) testimony of a shipyard employee relating discriminatory comments he heard from officials; and (3) anecdotal evidence of three employees who believed they suffered race discrimination. Court uses occasion to reexamine and reconcile divided authority in circuit on harmless error.

Beentjes v. Placer County Air Pollution Control Dist., 397 F.3d 775, 16 A.D. Cases 720 (9th Cir. 2005). Panel: PAEZ, Ferguson, Reinhardt. Claims on Appeal: ADA reasonable accommodation. Disposition Below: Motion to dismiss denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds : District was not arm of the state and thus there was no Eleventh Amendment immunity from ADA claim.

Al-Safin v. Circuit City Stores, Inc., 394 F.3d 1254, 95 FEP 19 (9th Cir. 2005): Panel: TASHIMA, Paez [BEA, dissenting]. Claims on Appeal: Federal and Wash. state law anti-discrimination. Disposition Below: Motion to compel arbitration denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Modified rules of arbitration, which eliminated various disputed provisions (affecting remedies, costs of arbitration, and limitations periods) but was adopted after employee was terminated, did not apply to plaintiff. Contract was not properly modified under Washington state contract law. Prior, unmodified rules - though valid under state law - held substantively unconscionable under Washington state contract law. Disputed clauses so infected arbitration agreement that the entire contract was invalid.

Pardi v. Kaiser Permanente Hospital, 389 F.3d 840, 16 A.D. Cases 289 (9th Cir. 2004). Panel : MOSKOWITZ, Wallace, McKeown. Claims on Appeal: ADA retaliation and discrimination. State tort and contract claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: The plaintiff filed a breach of contract and tort action against Kaiser under California law, as well as an ADA retaliation and discrimination claim. The ADA claims related to statements made and documents shared by Kaiser with state licensure board. The district court held that the ADA claims were barred either by the release or by "California Civil Code § 47(b), which establishes an absolute litigation privilege for communications made in the course of litigation." Panel affirms enforcement of the release against Kaiser's pre-settlement conduct, but reversed dismissal of ADA post-settlement ADA claims. For the release, the panel found a potential breach of the contract by the employer -- that "that a trier of fact could reasonably find that the Settlement Agreement obligated Kaiser to remove all references to its prior termination of Pardi in his personnel record and change Pardi's record to reflect a voluntary resignation by January 20, 2000." The court also rejected the assertion of a state litigation privilege against a federal cause of action on Supremacy Clause grounds.

Porter v. California Dept. of Corrections, 383 F.3d 1018, 94 FEP 928 (9th Cir. 2004) . Panel: CALLAHAN, Schroeder [TALLMAN, dissenting in part]. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Under Morgan, supervisor's decision to deny plaintiff a transfer during the 300 days prior to the filing of the charge may constitute a tangible employment action (although record was unclear about whether transfer would have involved significantly different responsibilities) and thus presents a genuine issue of material fact about whether the harassment claim continued. Although alleged harasser was not supervisor at the time of the harassment, but only at the time of the alleged retaliation, Ellerth/Faragher extends to "other person acting with the authority of the company," including (as in this case) agent who started out as co-worker but later became supervisor. Genuine issue of material fact presented whether reason for transfer was pretextual, in light of deviations from standard operating procedures in cancelling already-approved transfer. While discrete acts (refusing to grant vacation days, disciplinary acts, negative performance evaluations) may not be aggregated with non-discrete acts (propositioning, name-calling, glaring, insults) to constitute harassment, there were sufficient non-discrete acts by two agents to present a triable issue of fact. Also a genuine issue of material fact whether there was causal link between more recent acts of harassment and harassment that were otherwise several years' time-barred. 2. Although retaliatory act (denial of transfer) followed harassment by several years, it was not necessary under Breeden (to prove causal link) that the events occurred in close temporal proximity, where other evidence supplied inference (e.g., alleged harasser only first found himself in a position to retaliate when he was promoted over plaintiff, and he made remark indicating that he would have horned a request for a transfer for anyone but the plaintiff). Genuine issue of material fact presented whether reason for transfer was pretextual, in light of deviations from procedures noted above.

Sagana v. Tenorio , 384 F.3d 731 (9th Cir. 2004). Panel: GOODWIN, Schroeder, Wallace. Claims on Appeal: Constitutional and § 1981 challenge to territorial law . Disposition Below: Motion to dismiss and summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Territory gives legal hiring preference to natives of Northern Mariana Islands. While district court erred in dismissing § 1981 claim based on complaint, judgment could be affirmed on alternative ground that Equal Protection challenge failed on the merits. Court finds that § 1981 supports a claim for alienage discrimination, based on statute's word "citizens" to describe class of white persons and history of citation of statute beyond racial discrimination claims by Supreme Court and other circuits. Territorial law violates neither Equal Protection nor § 1981 because it is tailored to reasonable objective of boosting local economy and regulating nonresident workforce. No substantive Due Process claim that law infringes unduly on right to choose one's employment.

Coons v. Secretary of U.S. Dept. of Treasury, 383 F.3d 879, 15 A.D. Cases 1702 (9th Cir. 2004). Panel: HUG, B. Fletcher, Tashima . Claims on Appeal: 1. Rehabilitation Act demotion. 2. Rehabilitation Act retaliation. Whistleblower Protection Act claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. While finding a genuine issue of material fact regarding the issue of impairment by stress-related ailments, travel for work is not a major life activity. There is neither a record of, nor evidence that the employer regarded plaintiff as, substantial limitation in any major life activity. 2. No causal connection between protected activity (asking for an accommodation) and demotion, where a year separated the events, there was no other evidence linking the events, and the agency could point to performance based reasons for the action.

Thomas v. City of Beaverton, 379 F.3d 802, 94 FEP 353 (9th Cir. 2004). Panel: FISHER, Goodwin, McKeown. Claims on Appeal: Title VII and Equal Protection retaliation. First Amendment, state tort and statutory claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff presented genuine issue of material fact on participating in a protected activity (participating in co-worker's Title VII suit) and causal link to an adverse employment action (being placed on probation seven weeks later).

Werft v. Desert Southwest Annual Conference of United Methodist Church, 377 F.3d 1099, 15 A.D. Cases 1409 (9th Cir. 2004). Panel: Per Curiam [Fernandez, Thomas, Callahan]. Claims on Appeal: ADA and state law termination and reasonable accommodation. Disposition Below: Dismissed under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Claim that pastor was fired from church after he requested, and was denied, reasonable accommodation of certain ailments barred by "ministerial exception" implied by Free Exercise clause of the U.S. Constitution.

Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 94 FEP 206 (9th Cir. 2004). Panel: FISHER [GOULD, concurring] [TROTT, dissenting]. Claims on Appeal: Title VII and Wash. state law harassment and retaliation. State law claims (not discussed here). Disposition Below: Dismissed under Fed. R. Civ. P. 12(b)(6) (converted to judgment on the pleadings) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Church's firing of, and other adverse employment decisions against, plaintiff (a female minister) are insulated from review by "ministerial exception" to anti-discrimination laws implied by Free Exercise clause of the U.S. Constitution. Nevertheless, reframing the claim to cover only the church's vicarious liability for an alleged hostile work environment (either discrimination or retaliation) and plaintiff's resulting emotional distress/reputational injury, case does not interfere with church's constitutional prerogatives and can be proceed in court. Church did not claim that church doctrine affected its response to the plaintiff's complaints of harassment. Court declines to find plaintiff's vow to resolve disputes internally with church to be enforceable arbitration agreement, but remands issue for consideration below. Remand directs district court to pay particular attention to discovery issues to prevent abuse or overbreadth.

Maduka v. Sunrise Hosp., 375 F.3d 909, 94 FEP 89 (9th Cir. 2004). Panel: WALLACE, Kozinski, Thomas. Claims on Appeal: Section 1981suspension of hospital privileges. Disposition Below: Dismissed under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff had no obligation to plead identity of non-African American doctor who received relatively better treatment.

Watkins v. Ameripride Services, 375 F.3d 821, 15 A.D. Cases 1229 (9th Cir. 2004). Panel: RAWLINSON, Silverman [W. FLETCHER, concurring]. Claims on Appeal: Cal state law reasonable accommodation disability claim. State law statutory claim (not discussed here). Disposition Below: Judgment after a bench trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer reasonably accommodated plaintiff's lifting restriction by offering vacant job for which he was qualified (doing telephone surveys), as well as temporary work as a delivery person, and held open plaintiff's job for one year in the event that he returned to work.

Fonseca v. Sysco Food Services of Arizona, Inc., 374 F.3d 840, 94 FEP 65 (9th Cir. 2004). Panel: B. FLETCHER, Reinhardt, Restani. Claims on Appeal: 1. Title VII and section 1981 denial of leave (race, national origin). 2. Title VII and section 1981 discipline and denial of overtime (race, national origin). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Although Title VII claim was time-barred, section 1981 claim was timely under 4-year period. 2. Sanction excluding declaration of plaintiff's witness reversed because late-disclosure of witness was substantially justified and harmless. District court erred by excluding all of plaintiff's evidence of disparate treatment on hearsay/personal knowledge grounds. Genuine issue of material fact where plaintiff presented evidence between ten and thirteen times white employees got called in for overtime, while plaintiff did not. Although plaintiff successfully grieved five claims, his back pay was delayed by months instead of 48 hours as required by the collective bargaining agreement. Supervisor also supposedly told plaintiff "we're not going to waste three hours" cutting a check. Accumulation of these incidents was an adverse employment action. addition al evidence that disparate treatment was motivated by race included being ridiculed about his accent and subjected to inexplicable discipline for damaging property, when equally (or more) responsible white employees were not punished for same incident.

Enlow v. Salem-Keizer Yellow Cab Co., Inc., 371 F.3d 645, 93 FEP 1601 (9th Cir. 2004). Panel: ALARCON, Rawlinson [FERGUSON, dissenting in part]. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Action by employer, which fired plaintiff (age 72) because liability insurance policy only covered drivers no older than 70, furnished direct evidence that decision was based on age. McDonnell Donnell pretext analysis did not apply and district court erred in granting summary judgment to defendant on ground that plaintiff had not rebutted employer's avowed non-discriminatory reason (i.e. licensing requirement of city that all drivers have insurance). Summary judgment not appropriate for plaintiff, either, because employer was not aware of age-70 limit to policy when it bought it, did not buy the policy with an intent to discriminate by age (but instead to econmize on premiums), helped him to find new temporary work and tried to persuade insurer to lift age restriction.

Luong v. Circuit City Stores, Inc., 368 F.3d 1109, 15 A.D. Cases 1123 (9th Cir. 2004). Panel: RYMER, Kozinski, Fernandez. Claims on Appeal: ADA discrimination . Disposition Below: Petition to vacate arbitration award denied [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although district court has federal question jurisdiction over challenge to arbitration award under FAA on manifest disregard of law grounds, arbitrator did not disregard Supreme Court decision in Toyota Motors in finding that plaintiff did not suffer a disability.

Bodett v. CoxCom, Inc., 366 F.3d 736, 93 FEP 1108 (9th Cir. 2004). Panel: HAWKINS, Fernandez, Thomas. Claims on Appeal: Title VII and Ariz. state law termination (religion). First Amendment and state tort claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff, who was terminated for harassing lesbian subordinate (e.g., inviting her to Christian conference, mentioning sexual orientation in performance review) presented no genuine issue of material fact that she was singled out for termination because of her evangelical Christian religious beliefs. Plaintiff failed to present prima facie case that others not of her religious persuasion were treated differently. Alternatively, employee failed to establish pretext; arguments that she did not violate employer's harassment policy and that employer did not follow its own standards for enforcing policy unsupported by record. (Plaintiff did not present failure to accommodate claim.)

Rivera v. Nibco, Inc., 364 F.3d 1057, 93 FEP 929 (9th Cir. 2004). Panel: REINHARDT, Hawkins [SILER, concurring]. Claims on Appeal: Title VII and Cal. state law termination. Disposition Below: Protective order in discovery [plaintiffs]. Outcome on Appeal: Affirmed on interlocutory appeal [plaintiffs]. Grounds: Employer not allowed to inquire into immigration status of plaintiffs, even as to possible impact on remedies or after-acquired evidence defense (holding limited the Supreme Court's Hoffman Plastic decision, barring back pay awards under NLRA to undocumented employees not qualified to work). Court recommends bifurcated proceedings to avoid immediate need for discovery into plaintiffs' ability to return to work.

Hernandez v. Hughes Missile Systems Co., 362 F.3d 564, 15 A.D. Cases 609 (9th Cir. 2004). Panel: REINHARDT, Magill, Fisher. Claim on Appeal: ADA refusal to rehire. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds:On remand from U.S. S. Ct., court remands case to district court for trial on the issue of whether employer failed to rehire plaintiff owing to his status as a recovered alcoholic per 42 U.S.C.§12102(2)(B)-©)), where record shows that company consulted its records, learned about plaintiff's past alcohol abuse, noted the same in its EEOC statement, but changed its reason for not hiring plaintiff (to an unwritten and uncertain policy of not hiring anyone previously terminated for cause) only after case was filed. Dissembling is evidence of pretext.

McGinest v. GTE Service Corp., 360 F.3d 1103, 93 FEP 557 (9th Cir. 2004). Panel: PAEZ, Reinhardt, [O'SCANNLAIN, concurring and dissenting]. Claim on Appeal: 1. Title VII harassment (race); 2. Title VII promotion (race); 3. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]; 2. Summary judgment [defendant]; 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]; 2. Reversed [plaintiff]; 3. Affirmed [defendant]. Grounds: 1. Genuine issue of material fact that behavior alleged was severe or pervasive (threats of violence; unequal application of work rules; racial graffiti; extreme racial insults, and more subtle taunts, by supervisors and coworkers). Incidents that were not specifically racial could be placed in context of common use of word "nigger" in workplace. White colleague also harassed for making friendships that crossed racial lines. Defendant did not raise Faragher defense on appeal; panel noted that anyone engaged in "supervision of or had authority" employee is deemed a "supervisor" for vicarious liability purposes. Genuine issue of material fact over prompt and effective remedial policy for coworkers, where only tangible step (before plaintiff filed an EEOC charge) was to paint over graffiti.; 2. Genuine issue of material fact of employer's reason for not promoting plaintiff (GTE unable to produce any documentation verifying that there was a salary freeze).; 3. No evidence of causal link between EEOC charge and events 18 months later.

Trichler v. County of Lake, 358 F.3d 1150, 93 FEP 378 (9th Cir. 2004). Panel: CUDAHY, Goodwin, Kleinfeld. Claims on Appeal: Cal. state law harassment (sex). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff lacked standing to challenge district court's assertion assumption of supplemental jurisdiction over state law claims after dismissal of Title VII claim on Eleventh Amendment grounds; immunity is state's to claim as affirmative defense and does not defeat subject matter jurisdiction. Judicial estoppel did not apply to prior, unappealed administrative finding against defendant. Court did not err in instructing jury that liability required a finding of discrimination; failure to investigate claim of harassment does not by itself fix liability. No error in verdict form that did not reiterate instruction to consider totality of circumstances, where jury instruction covered the same issue. Court did not abuse discretion by denying plaintiff leave to read lengthy document into record. Plaintiff failed to preserve objections to make offers of proof.

Peterson v. Hewlett-Packard Co., 358 F.3d 599, 92 FEP1761 (9th Cir. 2004). Panel: REINHARDT, W. Fletcher, Gould . Claims on Appeal: Title VII and Idaho state law termination and reasonable accommodation (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff terminated for insubordination after he repeatedly refused direction to remove anti-gay scripture quotes from workspace. No disparate treatment by enforcement of company's anti-bias policy against employee, which included protection of gay employees. Employer was permitted under Title VII to promulgate policy, post signs, and restrain contrary message by individual employee which he admitted was intended to be "hurtful" to passers-by who read them. Suggested accommodations (removing anti-bias materials or allowing plaintiff to post opposing views out in the open) would have constituted "undue hardship."

EEOC v. Pacific Maritime Assoc., 351 F.3d 1270, 92 FEP 1672 (9th Cir. 2004). Panel: ALDISERT, Graber, Gould. Claims on Appeal: Title VII harassment (sex). Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Association that operated dispatch hall for stevedores not a joint "employer" of plaintiff, where it did nothing to direct or control their work.

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Outten & Golden LLP
601 Massachussetts Avenue NW
Second Floor West Suite 200W
Washington, DC 20001
Phone: 202-847-4400
Map and Directions