NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 2 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS AUGUSTINE VASQUEZ, No. 18-35255
Plaintiff-Appellant, D.C. No. 4:16-cv-00184-DCN
v.
MEMORANDUM*
CITY OF IDAHO FALLS,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Idaho
David C. Nye, District Judge, Presiding
Argued and Submitted May 15, 2019
Seattle, Washington
Before: W. FLETCHER and BENNETT, Circuit Judges, and SILVER,** District
Judge.
Luis Agustin Vasquez appeals the district court’s grant of summary
judgment on his claims of race discrimination and retaliation under Title VII of the
Civil Rights Act of 1964. We have jurisdiction under 28 U.S.C. § 1291, and we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
reverse and remand for a trial on Vasquez’s Title VII claims of race discrimination
and retaliation. As the facts are familiar to the parties, we do not recite them here
except as necessary.
“We review the district court’s grant of summary judgment de novo,
construing the facts in the light most favorable to the nonmoving party and
drawing all reasonable inferences in that party’s favor.” Earl v. Nielsen Media
Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011).
I. Discrimination
The district court erred in granting summary judgment in favor of the City of
Idaho Falls (“the City”) on Vasquez’s discrimination claim. Vasquez, who is
Hispanic and Mexican-American, alleges the City terminated him because of his
race. We examine Vasquez’s discrimination claim under the McDonnell Douglas
burden-shifting scheme. See Reynaga v. Roseburg Forest Prods., 847 F.3d 678,
691 (9th Cir. 2017). The parties do not dispute that Vasquez satisfied his burden of
establishing a prima facie case of race discrimination. The City’s proffered non-
discriminatory reasons for Vasquez’s termination are that Vasquez was accused of
sexual harassment by his coworkers shortly before his termination and that
Vasquez fired an employee named Arturo Alvarez without authority.
In response, Vasquez presents sufficient evidence to establish a genuine
dispute of material fact as to whether the City’s claimed reasons for the termination
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were pretext for unlawful discrimination. The district court correctly noted there is
no direct evidence of discriminatory intent because Vasquez has not established the
required nexus between coworker Jeff Baird’s discriminatory comments and
Vasquez’s termination. See Vasquez v. County of Los Angeles, 349 F.3d 634, 640
(9th Cir. 2003). However, the district court failed to properly consider Vasquez’s
circumstantial evidence of pretext. Vasquez presents evidence that throughout his
employment at the City, he was subjected to racial harassment by Baird and that
the City failed to punish Baird despite receiving reports from multiple people about
his racist conduct. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1123 (9th
Cir. 2004) (explaining that an employer’s “permissive response to harassing
actions undertaken by coworkers and supervisors” is circumstantial evidence of
pretext). By contrast, after the City received similarly severe complaints of sexual
harassment against Vasquez, it treated him less favorably than Baird, a white man,
by immediately disciplining Vasquez and terminating him two weeks later. See
Reynaga, 847 F.3d at 691–92. Vasquez also offers evidence that one of the City’s
proffered reasons—his unauthorized termination of Alvarez—is inconsistent with
the City’s own personnel records that state Alvarez resigned because he found a
new job, raising a triable issue as to whether its reason is “unworthy of credence.”
See Noyes v. Kelly Servs., 488 F.3d 1163, 1171–72 (9th Cir. 2007). Further,
evidence in the record indicates the City disciplined and terminated Vasquez in an
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irregular manner when it immediately disciplined Vasquez while refusing to
explain the reason, failed to follow its progressive disciplinary process, and denied
Vasquez access to the personal belongings he kept at work.
We therefore reverse the district court’s grant of summary judgment to the
City on Vasquez’s Title VII discrimination claim.
II. Retaliation
We conclude that Vasquez properly pled a Title VII retaliation claim in his
operative complaint. Vasquez’s allegation that the “City fired Vasquez because of
his race, and in retaliation for his complaints about and protest of . . . the racial
harassment and discrimination to which he was subjected, in violation of Title VII,”
gave sufficient notice to the City of his Title VII retaliation claim. See Pickern v.
Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006).
On the merits of the retaliation claim, Vasquez established a prima facie case
by showing he undertook a protected activity when he complained to his
supervisors about Baird’s racial harassment, and he was terminated by the City
approximately two months after his most recent complaint in September 2015. See
Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). As in the disparate
treatment context, the burden shifts back to the City to offer non-retaliatory reasons
for the termination. See Reynaga, 847 F.3d at 693. Those proffered reasons are
that Vasquez was accused of sexual harassment and fired Alvarez without
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authorization.
The district court erred in concluding that Vasquez failed to establish a
genuine dispute of material fact as to whether those reasons were pretext for
retaliation. Vasquez presents evidence of a temporal proximity of approximately
two months between his most recent complaint to the City and his termination. See
Dawson v. Entek Int’l., 630 F.3d 928, 937 (9th Cir. 2011). In addition, Vasquez’s
evidence of the City’s treatment of him during his employment, as well as
evidence of the irregular manner of his discipline and termination, raises a triable
issue as to the City’s retaliatory intent. See Reynaga, 847 F.3d at 694–95. Finally,
conflicting evidence regarding Alvarez’s departure undermines the credibility of
the City’s second proffered reason.
We therefore reverse the district court’s grant of summary judgment to the
City on Vasquez’s Title VII retaliation claim.
III. The City’s Motion to Strike
Finally, we address Vasquez’s challenge to the district court’s decision to
strike portions from the Declaration of Daris Powell as inadmissible summary
judgment evidence. “Evidentiary rulings made in the context of summary
judgment motions are reviewed for abuse of discretion and ‘can only be reversed if
[they were] both manifestly erroneous and prejudicial.’” Bias v. Moynihan, 508
F.3d 1212, 1224 (9th Cir. 2007) (alteration in original, internal quotation marks
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omitted) (quoting Ballen v. City of Redmond, 466 F.3d 736, 745 (9th Cir. 2006)).
The district court did not abuse its discretion when it struck the portions
from the Powell Declaration that concerned Baird’s alleged participation in
Vasquez’s termination decision. Under Federal Rule of Civil Procedure 56(c)(4),
an “affidavit or declaration used to support or oppose a motion must be made on
personal knowledge [and] set out facts that would be admissible in evidence.” The
district court properly struck portions of the Powell Declaration because they were
not based on personal knowledge and did not set forth facts that would be
admissible in evidence. See Wicker v. Or. ex. rel. Bureau of Labor, 543 F.3d 1168,
1178 (9th Cir. 2008). Powell had retired from the City five years prior to
Vasquez’s termination and had worked with different supervisors during his
employment.
Therefore, the district court did not abuse its discretion in striking the
statements as inadmissible.
REVERSED AND REMANDED FOR TRIAL.
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