NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARKIS J. KHOURY, No. 15-56088
Plaintiff-counter-defendant - D.C. No.
Appellant, 5:13-cv-00716-JGB-DTB
v.
REGENTS OF THE UNIVERSITY OF MEMORANDUM*
CALIFORNIA,
Defendant-counter-claimant –
Appellee.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted June 6, 2017
Pasadena, California
Before: LIPEZ,** BEA, and HURWITZ, Circuit Judges.
After conducting an internal investigation, the Regents of the University of
California ("Regents") terminated Sarkis Khoury's employment as a professor of
finance at the University of California-Riverside's Anderson Graduate School of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
Management and denied him emeritus status. Khoury then sued the Regents,
arguing that the investigation and subsequent actions violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a). The Regents countersued,
alleging Khoury had defrauded them by failing to disclose money earned from his
undisclosed and unauthorized side business and by failing to disclose money earned
from unauthorized teaching at a foreign university while on sabbatical.
The district court entered summary judgment in favor of the Regents on
Khoury's Title VII claims, except for his claim that the initial investigation was in
retaliation for protected speech. That claim was tried before a jury, which rejected
it. On the first day of the trial, Khoury unsuccessfully sought a judgment as a matter
of law ("JMOL") on the Regents' counterclaims. The jury found in favor of the
Regents on the fraudulent concealment counterclaim, awarding $14,500 in damages.
At the conclusion of the trial, the Regents filed an application to tax costs as the
prevailing party, which the district court largely approved, ordering Khoury to pay
$19,691.47.
On appeal, Khoury challenges the district court's summary judgment order
only insofar as it foreclosed him from arguing at trial that his termination and denial
of emeritus status were also the result of illegal retaliation. He also challenges the
district court's denial of his JMOL motion on the Regents' counterclaims and
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taxation of costs. We have jurisdiction over Khoury's appeal under 28 U.S.C.
§ 1291. We affirm.
1. When considering a motion for summary judgment on a Title VII
retaliation claim, courts follow the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Dawson v. Entek
Int'l,, 630 F.3d 928, 936 (9th Cir. 2011). Under this framework, an employee must
set forth a prima facie case of retaliation. Id. To do this, the employee must
demonstrate that (1) he engaged in a protected activity under Title VII, (2) the
employer subsequently took an adverse employment action, and (3) a causal link
exists between the two events. Id. If the employee carries this burden, the
defendant-employer must set forth a legitimate non-retaliatory reason for taking the
adverse employment action. Id. If the defendant does so, the burden shifts back to
the plaintiff to produce evidence sufficient to raise a genuine issue of material fact
as to whether the reason proffered is mere pretext for retaliation. Id.
The district court correctly found that Khoury failed to raise a genuine issue
of material fact at the pretext stage on the Regents' decision to terminate his faculty
position and deny him emeritus status. See id. The Regents terminated Khoury after
a disciplinary hearing involving two distinct sets of charges. The first set of charges
involved Khoury's actions regarding the university's hiring of a tenure-track faculty
member. Those charges and the university's investigation of them were the focus of
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the jury trial on Khoury's retaliation claim. The second set of charges involved
Khoury's alleged harassment of university staff, his unauthorized side business, and
his unauthorized outside teaching. The Regents' decision to terminate Khoury and
deny him emeritus status stemmed solely from the second set of charges. On this
second set of charges, Khoury had the benefit of a neutral hearing and decision
maker, unaffected by any retaliatory bias that allegedly gave rise to the first set of
charges. Under these circumstances, he failed to meet his burden at the final stage
of the McDonnell Douglas framework on the termination issue.
2. The district court correctly denied Khoury's JMOL motion as untimely
because it was "not properly considered as a Rule 50 motion." The purpose of a
Rule 50 JMOL motion is to "save the time and trouble involved in a lengthy jury
determination when there is a clear insufficiency of evidence on one side of the case
or the other." 9B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2521 (3d. ed. 2008). Khoury's JMOL motion did not argue that the
Regents failed to present sufficient evidence to prove their counterclaims. Instead,
he argued that the Regents should be barred from bringing their counterclaims under
theories of collateral estoppel and judicial exhaustion. As such, his JMOL motion
was a belated attempt to initiate a long-overdue Rule 12(b)(6) motion to dismiss.
3. Khoury's appeal of the taxing of costs rests entirely on his contention that
the district court should have granted his JMOL motion with respect to the Regents'
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counterclaims. Because we uphold the judgment on the counterclaims, we also
affirm the district court's taxing of costs.
AFFIRMED.
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