NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEJON D. WHITE, No. 17-17143
Plaintiff-Appellant, D.C. No. 5:15-cv-03521-EJD
v.
MEMORANDUM*
STATE OF CALIFORNIA, (California
Department of Corrections and
Rehabilitation); et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted January 18, 2019
San Francisco, California
Before: WALLACE, CLIFTON, and FRIEDLAND, Circuit Judges.
Dejon White appeals from the district court’s summary judgment in his
employment discrimination action under 42 U.S.C. § 1981 and California state law
against various individual correctional officers (collectively, “Defendants”).
White, who is an American of African descent, alleges that he suffered discipline
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
amounting to an adverse employment action during his employment as a
correctional officer with the California Department of Corrections and
Rehabilitation, and that the discipline was motivated by race discrimination and by
retaliation for protected activity. We affirm the district court’s summary judgment
in favor of Defendants.
In evaluating claims of discrimination and retaliation under 42 U.S.C.
§ 1981, we apply the burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Here, even assuming that White
established a prima facie case of discrimination and retaliation, he has failed to
present evidence from which a jury could conclude that the Defendants’ legitimate,
nondiscriminatory reasons were pretextual. Defendants introduced undisputed
evidence that White was ordered to cover Officer Vanessa Polanco’s post, that
White told Sergeant Warren he was ill and was then instructed by Sergeant Warren
to go to the Correctional Treatment Center (“CTC”) to complete a form for a
medical report of injury before leaving, that White objected to the process during
his meeting at CTC, and that White refused to fill out the form and eventually left
work without doing so. Defendants proffered a legitimate, nondiscriminatory
reason for White’s discipline: that he disobeyed superior officer Sergeant Warren’s
direct order. The burden therefore shifted back to White to demonstrate pretext.
White failed to present “specific and substantial” evidence of pretext. See
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Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002). For
example, White argues that another employee, Officer Polanco, was allowed to
leave for medical reasons but not required to fill out the form or subjected to any
discipline. Being required to fill out the form did not itself constitute an adverse
employment action. Nor was White disciplined for failing to fill out the form.
Rather, he was disciplined for disobeying the order to fill out the form. As a result,
he needed to present evidence that another employee outside of his protected class
also disobeyed a direct order of comparable seriousness and was not disciplined for
his or her actions. White has not presented such evidence, or anything else that
supports his argument that the non-discriminatory reason for which he was
disciplined was actually pretextual. White’s argument that the difference in how
Polanco was treated shows that Warren’s order was itself unjustified ignores the
fact that Polanco had already been pre-approved for informal time off, which she
was permitted to use without filling out any form. We agree with the district court
that White’s other evidence that he contends shows pretext, including the alleged
delay in investigation and timing of the adverse action, individually or collectively
do not rise to the level of “specific and substantial” evidence. Because of his
failure to present evidence of pretext, White’s claims of both discrimination and
retaliation under 42 U.S.C. § 1981 fail.
The district court’s summary judgment in favor of Defendants is
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AFFIRMED.
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