FILED
NOT FOR PUBLICATION JUL 30 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANITA ARANDA and GINA BROCK, No. 11-16894
Plaintiffs - Appellants, D.C. No. 3:09-cv-00660-RCJ-
RAM
v.
RENOWN SOUTH MEADOWS MEMORANDUM*
MEDICAL CENTER,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted April 18, 2013
San Francisco, California
Before: GRABER and CHRISTEN, Circuit Judges, and TUNHEIM,** District
Judge.
Plaintiffs, Anita Aranda and Gina Brock, appeal from the district court’s
order granting summary judgment on their claims of national origin discrimination
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq., against Renown South Meadows Medical Center (Renown). We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Leong v. Potter,
347 F.3d 1117, 1123 (9th Cir. 2003), and affirm.
Even if plaintiffs established a prima facie case of employment
discrimination under the burden-shifting framework in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802–03 (1973), they failed to show that Renown’s
proffered “legitimate, nondiscriminatory reason” for terminating them—sleeping
on duty—was a “pretext for unlawful discrimination.” Aragon v. Republic Silver
State Disposal, Inc., 292 F.3d 654, 658 (9th Cir. 2002). Plaintiffs aver that their
direct supervisor expressed anti-Filipino animus. But the record shows that the
director of human resources (who expressed no such bias) left the supervisor with
virtually no choice but to terminate plaintiffs because of several reports of them
sleeping on duty in violation of Renown’s policy.
Plaintiffs cannot establish a prima facie case of retaliation based on Brock’s
request to speak to Renown’s hospital administrator after plaintiffs’ supervisor
accused them of sleeping on duty. See Raad v. Fairbanks N. Star Borough Sch.
Dist., 323 F.3d 1185, 1196–97 (9th Cir. 2003) (to make out prima facie case of
retaliation, plaintiffs must show that: (1) they engaged in protected activity; (2)
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defendant subjected them to adverse employment action; and (3) causal link exists
between protected activity and adverse action). Brock’s request was not a
“protected activity” because she did not oppose an unlawful practice. See id. at
1197 (protected activities include filing charge or complaint, providing testimony
regarding employer’s alleged unlawful practices, and engaging in activity intended
to oppose employer’s discriminatory practices). Further, Aranda presents no
evidence of a relationship between Brock’s request to speak to the hospital
administrator and Aranda’s complaint to the hospital administrator six months
earlier.
Summary judgment was properly granted.
AFFIRMED.
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FILED
Aranda v. Renown Medical Center, 11-16894 JUL 30 2013
MOLLY C. DWYER, CLERK
TUNHEIM, District Judge, concurring in part and dissenting in part. U.S. COURT OF APPEALS
I join the the majority’s conclusion that the district court properly granted
summary judgment on plaintiffs’ retaliation claim, but I respectfully dissent from
the conclusion that plaintiffs’ national origin discrimination claim fails.
Although the director of human resources instructed the supervisor to
terminate plaintiffs, the immediate impetus for the director’s instruction was an
email from the supervisor describing plaintiffs’ conduct and noting that it
amounted to “a termination offence.” And about one hour prior to sending the
email that led to plaintiffs’ termination, the supervisor had allegedly said that he
“hate[d] F’ing . . . Filipinos” and was “sick and tired of Filipinos.”1
1
As Renown notes, plaintiffs have relied only on the McDonnell Douglas
framework throughout this action to establish their claim for national origin
discrimination. Given the overtly discriminatory comments allegedly made by the
supervisor, plaintiffs may have been able to establish a prima facie case without
relying on McDonnell Douglas had they attempted to do so. See, e.g.,
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (“[I]f a plaintiff is able to
produce direct evidence of discrimination, he may prevail without proving all the
elements of a prima facie case. The McDonnell Douglas test is inapplicable where
the plaintiff presents direct evidence of discrimination.” (citation and internal
quotation marks omitted)); E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir.
2009) (“A plaintiff may establish a prima facie case either by meeting the four-part
test laid out in [McDonnell Douglas] or by providing direct evidence suggesting
that the employment decision was based on an impermissible criterion.”). The
supervisor’s statements may have been sufficient for plaintiffs to survive summary
judgment regardless of whether plaintiffs can establish the McDonnell Douglas
prima facie test and despite Renown’s proffered non-discriminatory justification
for firing plaintiffs. See Boeing Co., 577 F.3d at 1049 (“When the evidence is
In my view, a reasonable factfinder could find that the supervisor
“influenced or participated in the decisionmaking process” by sending the email,
and viewing the facts in the light most favorable to plaintiffs, a reasonable
factfinder could find that the supervisor’s “animus affected the employment
decision.” Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1039-40 (9th
Cir. 2005); see also Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (“[I]f
a subordinate . . . sets in motion a proceeding by an independent decisionmaker
that leads to an adverse employment action, the subordinate’s bias is imputed to the
employer if the plaintiff can prove that . . . the biased subordinate influenced or
was involved in the decision or decisionmaking process.”). Therefore, I believe
there is a sufficient connection between the discriminatory remarks and plaintiffs’
termination for a reasonable factfinder to determine that unlawful discrimination
occurred. See 42 U.S.C. § 2000e-2(m) (“[A]n unlawful employment practice is
established when the complaining party demonstrates that . . . national origin was a
motivating factor for any employment practice, even though other factors also
motivated the practice.”).
Accordingly, I would reverse and remand on plaintiffs’ national origin
discrimination claim.
direct, we require very little evidence to survive summary judgment.” (alteration
and internal quotation marks omitted)).
2