FILED
NOT FOR PUBLICATION JUN 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FREDERICK SCHIFF, No. 11-17293
Plaintiff - Appellant, D.C. No. 4:10-cv-01051-PJH
v.
MEMORANDUM *
THE CITY AND COUNTY OF SAN
FRANCISCO,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted May 16, 2013
San Francisco, California
Before: McKEOWN and WATFORD, Circuit Judges, and ZILLY, Senior District
Judge.**
Frederick Schiff, an officer in the San Francisco Police Department
(“SFPD”), sued the City and County of San Francisco (the “City”) for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Thomas S. Zilly, Senior District Judge for the U.S.
District Court for the Western District of Washington, sitting by designation.
discrimination, retaliation, and violation of his rights to free association, pursuant
to 42 U.S.C. §§ 1981 and 1983. Schiff appeals from the district court’s orders
denying a preliminary injunction and dismissing his First Amendment claim with
prejudice, as well its order granting the City’s motion for summary judgment and
denying Schiff’s motion for partial summary judgment. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review de novo both the dismissal of a claim
without leave to amend and a decision to grant or deny summary judgment. We
affirm.
Schiff alleges that the “stay-away order” prohibiting his contact with a
family who resided in his former precinct, issued by the SFPD to protect the family
from gang retaliation, violates his rights to free association. Schiff waived any
claim that his association was an intimate one and focused his argument on its
expressive nature. Although the protection for “expressive association is not
reserved for advocacy groups,” in order “to come within its ambit, a group must
engage in some form of expression, whether it be public or private.” Boy Scouts of
America v. Dale, 530 U.S. 640, 648 (2000). Schiff’s relationship is a social one
unprotected by the Constitution, which does not recognize “a generalized right of
‘social association.’” City of Dallas v. Staglin, 490 U.S. 19, 25 (1989). The district
court accordingly did not err in dismissing Schiff’s freedom of association claims
2
and denying leave to amend, because any amendment would be futile. Mueller v.
Auker, 700 F.3d 1180, 1191 (9th Cir. 2012).
Schiff argues that the district court erred in concluding that evidence of the
City’s past discrimination may not be used as evidence of current discrimination or
pretext. Evidence of past discrimination is admissible as background evidence
and can be considered by the trier of fact as indirect proof of the employer’s intent
to discriminate. Lyons v. England, 307 F.3d 1092, 1111-12 (9th Cir. 2002). To the
extent the district court failed to consider this evidence at all, the district court
erred. Nevertheless, Schiff’s discrimination claim still fails. Assuming that Schiff
can establish a prima facie case of discrimination under the burden shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973), the City has presented evidence of a legitimate, non-discriminatory reason
for not promoting Schiff. To make promotions in 2009-2010, the City used the
Rule of Five Scores and Chief Gascón made promotions in rank order unless a
candidate had recent disciplinary issues. Gascón skipped only one other officer
and Schiff, because both of them had disciplinary issues. Gascón stated that except
for those two candidates, he “was unaware of any recent disciplinary issues related
to the other candidates that would prevent their promotion.” Schiff has failed to
demonstrate that the City’s articulated reason is pretextual “either directly by
3
persuading the [fact-finder] that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered explanation is
unworthy of credence.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
256 (1981) .
Assuming that Schiff can establish a prima facie case of retaliation, the City
has presented legitimate, non-discriminatory reasons for the discipline and the
failure to promote—Schiff’s neglect of duty—and for the stay-away order—the
risk to the family in his former precinct. Although Schiff points to irregularities in
the circumstances surrounding the stay-away order, Schiff’s own reports document
the seriousness of the threats made against the family and the fact that they were
made because “police [were] coming in and out of [the] house on a regular basis”
and because family members were seen as “so friendly with police” that residents
inferred that the family members “must be snitching on [gang-members’] criminal
activities.” With respect to the promotion claim, it is undisputed that three others
who engaged in the same protected activity as Schiff were promoted during the
relevant time period, plus an additional officer who sued the SFPD independently.
Schiff has not met his burden of demonstrating that the reasons proffered by the
City were merely a pretext for a retaliatory motive. Ray v. Henderson, 217 F.3d
1234, 1240 (9th Cir. 2000).
4
Because we affirm the dismissal of Schiff's First Amendment claim, Schiff's
request for review of the denial of his preliminary-injunction motion is moot.
Schiff’s motion for judicial notice is also DENIED as moot.
AFFIRMED.
5