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NOT FOR PUBLICATION JUN 18 2013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. 11-17291
Plaintiff - Appellant, D.C. No. 4:08-cv-04627-PJH
v.
MEMORANDUM *
THE CITY AND COUNTY OF SAN
FRANCISCO; SAN FRANCISCO
POLICE DEPARTMENT; HEATHER
FONG, Individually and in her official
capacity as Chief of the San Francisco
Police Darthment,
Defendants - Appellees.
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.**
*
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.
Frederick Schiff appeals from the district court’s order granting a motion for
summary judgment by the City and County of San Francisco (the “City”) and its
former Chief of Police Heather Fong, and denying Schiff’s motion for partial
summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291. After de
novo review of the evidence in the light most favorable to the non-moving party,
we affirm.
Schiff, an officer in the San Francisco Police Department (“SFPD”), alleges
that he was subject to adverse employment actions because the City discriminated
against him on the basis of race and retaliated against him for his prior race
discrimination complaints and lawsuit, in violation of 42 U.S.C. §§ 1981 and 1983.
Although the settlement of Schiff’s prior lawsuit released the City from liability for
the adoption of “banding” in making promotions from the 2005 lieutenants list, we
agree with Schiff that it did not prevent him from relying on the City’s use of
banding as evidence here. See RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045,
1062 (9th Cir. 2002).
Assuming that Schiff established 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), his claims fail because the City introduced evidence
demonstrating that Schiff was not promoted for legitimate, non-discriminatory
2
reasons, and Schiff has failed to introduce evidence that would raise a genuine
question of material fact as to whether the City’s proffered reasons were pretextual.
See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062-64 (9th Cir. 2002).
Among the considerations in determining promotions was disciplinary history.
Schiff had several disciplinary charges pending against him at the time of the
October 2008 promotions, including one for neglect of duty that was sustained
after two appeals. Chief Fong also stated additional specific and well-documented
reasons concerning Schiff’s conduct and judgment.
Once the City has provided non-discriminatory reasons for the adverse
action, the “the presumption of discrimination ‘drops out of the picture,’” and we
determine based on the evidence in the record whether a reasonable jury could
conclude that defendants discriminated against Schiff on the basis of race. See
Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).
Schiff was unable to identify a single officer who was promoted who had recent
disciplinary charges. It is not enough for Schiff to merely point out that a non-
white candidate ranked below him was promoted and he was not.
With regard to retaliation, Schiff has failed to introduce evidence
establishing a causal link between the protected activity and the adverse action.
3
Manatt v. Bank of America, 339 F.3d 792, 800-04 (9th Cir. 2003). “[I]n the light
of the timing and the surrounding circumstances,” the district court did not err in
determining that the five years between the filing of Schiff’s lawsuit in 2003 and
the alleged retaliation in 2008 undermined the required causal link between the
protected activity and the adverse employment action. Anthoine v. N. Cent. Cntys.
Consortium, 605 F.3d 740, 751 (9th Cir. 2010) (quoting Coszalter v. City of Salem,
320 F.3d 968, 977-78 (9th Cir. 2003)) (internal quotation marks omitted).
Even assuming Schiff established a prima facie case of retaliation, he bears
the burden of demonstrating that the City’s reasons were merely a pretext for a
retaliatory motive. See Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).
With regard to the failure to promote, Schiff failed to introduce evidence sufficient
to show pretext; in fact, Chief Fong knowingly promoted three other individuals
involved in the same lawsuit during the relevant time period. With regard to the
stay-away order, the consistent statements and documentary evidence supporting
Cashman’s justification are not mutually exclusive of Chief Fong’s explanation.
The fact that there were two legitimate justifications for the stay-away order does
not render either one unworthy of credence. See Aragon v. Republic Silver State
Disposal Inc., 292 F.3d 654, 661 (9th Cir. 2002) (holding that “[w]e do not infer
4
pretext from the simple fact that [the defendant] had two different, although
consistent, reasons” for the adverse employment action).
Although the evidentiary burdens shift back and forth under the McDonnell
Douglas framework, the “plaintiff retains the burden of persuasion.” Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Schiff has not introduced
evidence sufficient for a jury to be able conclude either that “a discriminatory
reason more likely motivated the employer or . . . that the employer’s proffered
explanation is unworthy of credence.” Chuang v. University of California Davis,
225 F.3d 1115, 1124 (9th Cir. 2000) (internal quotation marks and citation
omitted). Accordingly, Schiff has failed to “demonstrate that the proffered reason
was not the true reason for the employment decision” and has not carried his
burden. Burdine, 450 U.S. at 256.
Even if there had been a discriminatory or retaliatory action, the City would
not be liable because Chief Fong was not a final policymaker for the purposes of
hiring and promotions. See Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232,
1253 (9th Cir. 2010) (noting that “‘[t]o hold cities liable under section 1983
whenever policymakers fail to overrule the unconstitutional discretionary acts of
subordinates would simply smuggle respondeat superior liability into section 1983
law’” (quoting Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992) (per
5
curiam))). Nor has Schiff identified any unlawful City policy. See id. at 1249. We
have considered the documents Schiff submitted with his motion for judicial
notice. The motion is DENIED as unnecessary. See Von Saher v. Norton Simon
Museum of Art, 592 F.3d 954, 960 (9th Cir. 2010).
AFFIRMED.
6
FILED
Schiff v. City and County of San Francisco, No. 11-17291 JUN 18 2013
MOLLY C. DWYER, CLERK
ZILLY, Senior District Judge, concurring in part and dissenting in part: U .S. C O U R T OF APPE ALS
I agree that Chief Fong was not a final policymaker for purposes of hiring
and promotion. As a result, the City is not liable on Schiff’s claims. I also agree
that, notwithstanding the settlement of Schiff’s prior lawsuit, Schiff was not
precluded from relying on the City’s use of banding as evidence in this case.
Schiff alleges he was discriminated against based on race in connection with
his efforts to be promoted to Lieutenant in October 2008. The majority correctly
assumes Schiff established a prima facie case of discrimination but concludes he
failed to introduce evidence that would raise a genuine issue of fact as to whether
the City’s proffered reasons for not promoting him were pretextual. I disagree and
would reverse the trial court’s decision to grant summary judgment against Schiff
on his discrimination and retaliation claims. When this Court reviews a district
court’s order granting summary judgment, the Court must view the record in the
light most favorable to the non-moving party (Schiff) and draw all reasonable
inferences in favor of that party. Under this well-established standard, the district
court erred in granting summary judgment in favor of the defendants.
At the time this action was filed in October 2008, Schiff was a Sergeant in
the San Francisco Police Department (“SFPD”). Schiff is white. Schiff and 10
other officers previously sued the City in 2003, alleging racial discrimination in
appointments made from the 1999 Lieutenant-eligible list. Schiff’s current action
involves the failure to promote him in October 2008 based on the 2005 Lieutenant-
eligible list. Based on his examination score, Schiff was ranked 29 on a list of 152
individuals on the 2005 Lieutenant-eligible list.
Under the City’s practice of “banding,” the first 11 candidates on the 2005
Lieutenant-eligible list were promoted, and thereafter a sliding band was used to
fill the remaining slots down to the individual ranked 66. In the “banding”
process, secondary criteria were also considered, including assignments, training,
education, special qualifications, commendations, awards, bilingual certification,
and discipline history. Sergeant Gittens, a minority officer ranked 66, was
promoted to Lieutenant over Schiff. Schiff had a college degree, had been
awarded medals of valor, speaks a foreign language, had been a sergeant for 16
years, and had previously been an “acting” Lieutenant. In contrast, Gittens had
eight years at the rank of sergeant, and did not have any of Schiff’s other
qualifications.
The practice of “banding” in making the October 2008 promotions was itself
evidence of discrimination. It is undisputed that “banding” is an SFPD practice
used to boost the number of minority candidates eligible for promotion over white
candidates. As the majority and I agree, this evidence of “banding” should have
been considered by the district court in ruling on the motion for summary
judgment, despite the settlement of Schiff’s prior lawsuit. The majority and I part
ways concerning whether this evidence created a genuine issue of material fact as
to pretext. I am persuaded that this evidence sufficiently demonstrated the City
favored minority candidates in the promotional process so as to make summary
judgment inappropriate. Moreover, Schiff’s superior qualifications, standing
alone, were enough to establish a question of fact relating to pretext.
The City contends Schiff was not promoted because disciplinary charges
were pending against him at the time of the October 2008 promotions, including
one for neglect of duty. The City’s reliance on these events, which occurred in late
September 2008, immediately before the October 2008 selections, is highly
suspect. Schiff indicates that, after he had been an SFPD officer for more than
20 years without any disciplinary problems, Captain Barrett filed five disciplinary
violations against him on October 1, 2008, the day before Chief Fong announced
additional promotions to Lieutenant, and two days before the 2005 Lieutenant-
eligible list expired. Chief Fong did not promote Schiff allegedly because of the
five violations filed by Captain Barrett, but Chief Fong admitted that, with respect
to other candidates, she looked only at internal affairs complaints that had been
sustained. At the time Schiff was passed over for promotion, Captain Barrett’s
charges against Schiff were merely allegations, and four of the five alleged
violations were later found to be unsubstantiated. Schiff contends that the
allegations against him were trumped up by Captain Barrett to create a disciplinary
infraction that would block his promotion. Schiff has made a sufficient showing to
survive summary judgment, presenting factual questions as to whether the
disciplinary charges were merely pretext.
I also disagree with the majority’s decision to affirm the dismissal of the
retaliation claim. Schiff has had a long history of complaints against the SFPD.
Schiff’s prior litigation (Schiff I), initiated in 2003, involved the same “banding”
policy. The majority concludes, I believe incorrectly, that the district court did not
err in determining that the five years between the filing of Schiff I and the failure
to promote Schiff to Lieutenant, allegedly as a result of retaliation, destroyed the
required causal link between the protected activity and the adverse employment
action. October 2008 was Chief Fong’s first opportunity after Schiff I to decide
whether to promote Schiff. This Circuit has cautioned against engaging in “a
mechanical inquiry into the amount of time between the [protected activity] and the
alleged retaliatory action” and has rejected the application of any “bright-line rule
providing that a certain period of time is per se too long to support an inference of
retaliation.” Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 751 (9th
Cir. 2010). The circumstances of this case do not support the district court’s
reliance on the passage of time, particularly in light of the fact that none of the five
other Schiff I plaintiffs on the 2005 Lieutenant-eligible list were promoted by
Chief Fong in 2008. Summary judgment on the retaliation claim should not have
been granted.
For the foregoing reasons, I must respectfully dissent.