concurring in part and dissenting in part:
Metoyer sued the Screen Actors Guild (“the Guild”)1 for race discrimination and retaliation after the Guild fired her.2 She was fired. But only after she admitted to the Guild she had doled out over $30,000 of Guild funds to her business partners, friends, and family through a pretty simple, but effective, scheme. She admitted she fabricated bogus invoices and concocted inexistent events. She authorized Guild payments for these phoney items to the nice-sounding Loyola Marymount University (“LMU”). There, a compliant LMU employee would hold the Guild money till Metoyer gave instructions for disbursement to her business partners, friends, and family.
LMU was a cut-out. The paper trail at the Guild would show that only LMU had received the funds in payment for invoices or for events. LMU’s records would show who the real recipients were, but those records were not on the Guild’s premises.
In a misguided opinion, the majority rejects the Guild’s defense that notwithstanding the validity of Metoyer’s racial discrimination claims, the Guild had a perfect right to fire her, and would have done so, because of Metoyer’s theft of its funds. That is, the majority rejects the “mixed-motive defense” in a § 1981 discrimination action.
In reversing summary judgment for the Guild, the majority got the law and the facts wrong.
The Law. The Civil Rights Act of 1991 (“1991 CRA”)3 amended Title VII to make the mixed-motive defense only a defense to damages, but not to liability, in discrimination actions brought under “section 2000e-2(m) of this title.” 42 U.S.C. § 2000e-5(g)(2)(B). The majority holds § 2000e-5(g)(2)(B) somehow applies to actions brought under § 1981. This, in spite of the fact that § 1981 was also amended as to other particulars with the 1991 CRA, but no limitation to the mixed-motive defense was enacted in § 1981.
In effect, the majority opinion amends § 2000e-5(g)(2)(B) to make its limitations on the mixed-motive defense applicable to actions brought “under section 2000e-2(m) or section 1981 of this title.” This violates the fundamental provision of the United *943States Constitution that vests legislative power in the Congress of the United States.4
The majority opinion’s amendment of § 2000e-5(g)(2)(B) also creates an inter-circuit split with the Eleventh Circuit. Mabra v. United Food & Commercial Workers Local Union No. 1996, 176 F.3d 1357, 1357-58 (11th Cir.1999). Such amen-datory reading of § 2000e-5(g)(2)(B) also departs from the wise reasoning of other sister circuits that have held § 2000e-5(g)(2)(B), by its plain language, is inapplicable to actions brought under the Age Discrimination in Employment Act, the False Claims Act, and 42 U.S.C. § 1983.5
The Facts. One cannot get away from the fact that Metoyer gave the Guild the motive for her firing by admitting fabrication of invoices, payment of Guild funds in direct violation of undisputed Guild policies, and total lack of documentation for any services rendered in supposed exchange for the Guild funds defalcated by her. There simply is no triable issue that she pilfered the Guild’s funds. Henceforth, at least in the Ninth Circuit, employers will be forced to go to trial for terminating a thieving employee, so long as the employee makes a colorable claim that a potentially discriminatory motive played a role in the employer’s action.
Unlike the majority, I think that an amendment to one statute cannot sub si-lentio rewrite another. Unlike the majority, I think there is no triable issue that the Guild would have fired Metoyer for theft and fraud even in the absence of a discriminatory motive. I concur in Part III.B.1 of the majority opinion affirming the district court’s grant of summary judgment for the Guild on Metoyer’s discriminatory breach of contract claim. From the rest of the majority opinion reversing the district court’s grant of summary judgment, I respectfully dissent.
I.
The crux of this case then, is: (1) whether the mixed-motive defense remains a complete defense to § 1981 actions after the enactment of the 1991 CRA; and (2) if so, whether a triable issue of fact exists as to the Guild’s decision to terminate Metoyer for wrongfully giving over $30,000 of Guild funds to friends, family, and business partners, and falsifying invoices to cover up her tracks.
A.
The Supreme Court first recognized the mixed-motive defense to Title VII discrimination actions in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Hopkins sued Price Waterhouse under Title VII, claiming Price Waterhouse discriminated against her on the basis of gender in not proposing her for partnership after her candidacy was put on hold. Id. at 231-32, 109 S.Ct. 1775. The district court found that Price Waterhouse’s decision was based partly on impermissible gender stereotyping and partly on the legitimate reason that Hopkins had an abrasive interpersonal style. Id. at 236-37, 109 S.Ct. 1775. The Supreme Court held an employer’s mixed-*944motive in making an employment decision can be a complete defense to liability: “[0]nce a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed gender to play such a role.” Id. at 244-45, 109 S.Ct. 1775 (footnote omitted). This defense became known as the “mixed-motive defense.” Under Price Waterhouse, the mixed-motive defense was a complete bar to Title VII liability if the defendant proved, by a preponderance of the evidence, that it would have made the same employment decision absent the discriminatory motive. Id. at 252-53, 109 S.Ct. 1775.
At the time of the Price Waterhouse decision, every circuit to address the question, including the Ninth, had applied the same standards for liability to Title VII and § 1981. “Title VII and section 1981 are overlapping but independent remedies for racial discrimination in employment. ... The same standards are used to prove both claims ... and facts sufficient to give rise to one are sufficient to give rise to the other.” Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir.1985) (citations omitted).6 Thus, with the Supreme Court’s decision in Price Waterhouse, the mixed-motive defense also became an affirmative defense to actions brought under § 1981. See Odima v. Westin Tucson Hotel Co., 991 F.2d 595, 601-02 (9th Cir.1993) (reversing both Title VII and § 1981 judgments for the plaintiff based on the district court’s failure, inter alia, to consider the mixed-motive defense); Bains LLC v. Arco Products Co., 405 F.3d 764, 772 (9th Cir.2005) (rejecting the defendant’s mixed-motive defense to a § 1981 claim for lack of evidence).7 Indeed, even the majority concedes that because the same standards are used to prove both Title VII and § 1981 claims, the mixed-motive defense became a defense to § 1981 actions before the 1991 CRA’s enactment.8
*945The question then is what effect, if any, the 1991 CRA had on the applicability of the mixed-motive defense as a complete bar to liability under § 1981.
B.
I begin my interpretation, as I must, with the text of the 1991 CRA. And “where, as here, the words of the statute are unambiguous, the judicial inquiry is complete.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 98, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (citations and quotation marks omitted). At issue in this case are two new provisions the 1991 CRA added to Title VII, but not to § 1981. The first provision establishes the “mixed-motive” ground for Title VII liability. Id. at 94, 123 S.Ct. 2148. It states:
Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.
42 U.S.C. § 2000e-2(m). The second provision allows a defendant to limit the plaintiffs remedies, but not completely avoid liability, in an action brought under § 2000e-2(m) if the defendant can prove a mixed-motive defense:
On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—
(i) may grant declaratory relief, injunc-tive relief (except as provided in clause
(ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and
(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).
42 U.S.C. § 200’0e-5(g)(2)(B) (emphasis added). Thus, § 2000e-5(g)(2)(B) modified Price Waterhouse insofar as the Price Wa-terhouse Court recognized the mixed-motive defense as a complete bar to liability. See Estate of Reynolds v. Martin, 985 F.2d 470, 475 n. 2 (9th Cir.1993). Under the new § 2000e-5(g)(2)(B), the mixed-motive defense is a defense only to damages for an action under § 2000e-2(m), but not to liability for prospective equitable relief and attorneys’ fees.
Metoyer’s case requires us to decide What effect § 2000e-5(g)(2)(B) has on an action brought under § 1981. The answer: Absolutely none. Congress could not have been more explicit. Section, 20006-*9465(g)(2)(B) applies only “[o]n a claim in which an individual proves a violation under section 2000e-2(m) of this title.” Section 2000e-5(g)(2)(B) does not state that it applies “[o]n a claim in which an individual proves a violation under section 2000e-2(m) or section 1981 of this title.” Yet the majority, after a convoluted legal analysis, amends § 2000e-5(g)(2)(B) to say just that.
The majority’s judicial amendment is even more difficult to understand under any known precept of statutory interpretation because Congress also amended § 1981 in the 1991 CRA. See Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, 1071-72 (1991).9 Absent from the 1991 CRA’s amendments to § 1981, however, is any limitation on the applicability of the mixed-motive defense to § 1981. It is well-established that if “Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (quotation marks and citations omitted). Where Congress intended to limit the mixed-motive defense, it did so expressly and only as to certain claims (damages) but not others (prospective equitable relief and attorneys’ fees). See § 2000e-5(g)(2)(B). This is compelling evidence that Congress’s omission of such a limitation in § 1981, which Congress also amended in the very same Act, was intentional and not accidental.
It is also a “cardinal principle of statutory construction” that we must “give effect, if possible, to every clause and word of a statute.” Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (quotation marks and citations omitted). We must be “reluctan[t] to treat statutory terms as surplusage.” Id. (quotation marks and citations omitted). In remarkable disregard of this fundamental principle, the majority’s application of § 2000e-5(g)(2)(B) to § 1981 renders the following words in § 2000e — 5(g)(2)(B) entirely superfluous: “On a claim in which an individual proves a violation under section 2000e-2(m) of this title ...”10 If this provision also applies to § 1981, it is superfluous because its language limits the provision to *947claims for the violation of § 2000e-2(m). The only interpretation that would not render any part of § 2000e — 5(g)(2)(B) superfluous is the one that makes that provision applicable only to actions brought under § 2000e-2(m).
Under its clear statutory language, § 2000e-5(g)(2)(B) has no applicability to § 1981 actions. See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (“Absent a clearly expressed legislative intention to the contrary, [the statutory] language must ordinarily be regarded as conclusive.”); cf. Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 460-61, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (holding Title VII’s administrative complaint requirements apply only to Title VII actions and do not apply to § 1981 claims). Rarely does Congress declare its intent with such specificity. Instead of embracing that intent, the majority rejects it, without stating what in the world § 2000e-5(g)(2)(B) would mean if it does not limit the mixed-motive defense only as to § 2000e-2(m) claims.11
The majority reasons that because our decision in Fonseca held “the same legal principles” apply to § 1981 and Title VII actions, Fonseca’s holding “incorporated the amended Title VII into the § 1981 analysis such that the mixed-motive defense to liability is no longer available under § 1981.” The majority’s reliance on Fonseca is entirely misplaced. Fonseca had nothing to do with the mixed-motive defense or with the 1991 CRA’s amendments to Title VII.12 In Fonseca, we merely reaffirmed what we had been holding for two decades: the McDonnell Douglas burden-shifting framework from Title VII case law can also be used to analyze § 1981 actions. Fonseca v. Sysco Food Servs. of Ariz., 374 F.3d 840, 847-50 (9th Cir.2004) (citing Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir.1985)). The majority takes out of context Fonseca’s holding as to the McDonnell Douglas framework and extends it to a provision, § 2000e-5(g)(2)(B), which the Fonseca court did not even cite. The majority’s quite original, but quite erroneous, interpretation of § 2000e-5(g)(2)(B) is bad enough. But the majority compounds this error by stretching the language quoted from Fonseca outside the context in which the words were used.
C.
In addition to circumventing the plain language of § 2000e-5(g)(2)(B), the majori*948ty’s holding conflicts with the decisions of many of our sister circuits. First, the majority creates a direct circuit split with the Eleventh Circuit, which correctly interpreted § 2000e-5(g)(2)(B) to be inapplicable to § 1981. Mabra v. United Food & Commercial Workers Local Union No.1996, 176 F.3d 1357, 1357-58 (11th Cir.1999). The Mabra court reasoned that the plain language of § 2000e-5(g)(2)(B) makes no reference to § 1981. Id. The court found this omission to be particularly telling where the 1991 CRA also amended § 1981 to add two new subsections, none of which limit the applicability of the mixed-motive defense to § 1981 actions. Id.13
Second, at least seven of our sister circuits have concluded that § 2000e-5(g)(2)(B), which by its express language applies only to Title VII discrimination claims under § 2000e-2(m), is inapplicable even to Title VII retaliation claims under § 2000e-3. See Matima v. Celli, 228 F.3d 68, 81 (2nd Cir.2000) (so holding and collecting cases from the First, Third, Fourth, Seventh, Eighth, and Eleventh Circuits). These courts hold § 2000e-5(g)(2)(B)’s plain language compels this conclusion even though, like in § 1981 actions, courts have “generally borrowed from [Title VII] discrimination law in determining the burdens and order of proof in [Title VII] retaliation cases.” Woodson v. Scott Paper Co., 109 F.3d 913, 934 (3rd Cir.1997). Indeed, even the majority opinion holds § 2000e-5(g)(2)(B) is inapplicable to Title VII retaliation actions, and by extension, to § 1981 retaliation actions.
In so holding, the majority relies on our decision in Stegall v. Citadel Broadcasting Co., 350 F.3d 1061 (9th Cir.2004). In Stegall, which was decided after the 1991 CRA’s enactment, we assumed the mixed-motive defense continues to be a complete bar to liability in a Title VII retaliation action under § 2000e-3. Id. at 1068. The Stegall court did not explain why the 1991 CRA did not alter the mixed-motive analysis in a Title VII retaliation action, perhaps because that explanation is very straightforward. As discussed above, § 2000e-5(g)(2)(B), which limits the applicability of the mixed-motive defense, only applies to a Title VII discrimination claim under § 2000e-2(m). By its plain language, it is inapplicable to any other provision, including a Title VII retaliation claim under § 2000e-3. Thus, the Stegall court was quite correct to assume the mixed-motive defense continues to be a complete bar to liability in a Title VII retaliation action. Today, the majority extends Ste-gall’s holding to § 1981 retaliation actions (but not to § 1981 discrimination actions) and holds mixed-motive is a complete defense to liability under a § 1981 retaliation claim.
The majority’s decision to re-affirm Ste-gall, but extend § 2000e-5(g)(2)(B) to § 1981 discrimination actions, leads to some puzzling results.14 First, under the majority’s holding, the mixed-motive limitations to Title VII discrimination claims, *949while inapplicable to Title VII retaliation claims, are applicable to § 1981 discrimination claims. It would seem to defy logic to apply the mixed-motive limitations under § 2000e-5(g)(2)(B) to a § 1981 action, which is situated in a wholly different part of the United States Code, but not to a Title VII retaliation claim under § 2000e-3, which is, after all, a Title VII claim itself. Second, there is no reason why mixed-motive should be a complete defense to liability in a § 1981 retaliation action, but not in a § 1981 discrimination action. There is nothing in § 1981 that supports this distinction.
Third, the majority’s extension of § 2000e-5(g)(2)(B) to § 1981 implicitly parts company with our sister circuits that interpret § 2000e-5(g)(2)(B) to be inapplicable to claims brought under the Age Discrimination in Employment Act (“ADEA”). See Baqir v. Principi 434 F.3d 733, 745 n. 13 (4th Cir.2006); Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 512 n. 3 (3rd Cir.2004); Lewis v. Young Men’s Christian Ass’n, 208 F.3d 1303, 1305 (11th Cir.2000). Even though ADEA actions, like § 1981 actions, are governed by Title VII case law, our sister circuits follow the plain language of § 2000e-5(g)(2)(B) and hold the limitations to the mixed-motive defense do not apply to ADEA claims. Lewis, 208 F.3d at 1304-05.
Finally, the majority implicitly departs from our sister circuits which hold the plain language of § 2000e-5(g)(2)(B) is inapplicable to yet other sections of the United States Code. See Norbeck v. Basin Elec. Power Coop., 215 F.3d 848, 852 (8th Cir.2000) (holding the 1991 CRA did not alter the mixed-motive defense under the False Claims Act and the Price Waterhouse mixed-motive analysis governs the claim); Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1084 n. 5, 1085 (11th Cir.1996) (holding § 2000e-5(g)(2)(B) is inapplicable to § 1983 actions).15
Thus, I would join our sister circuits in holding § 2000e-5(g)(2)(B) is inapplicable to any claim other than a Title VII discrimination action brought under § 2000e-2(m) ... just as it says.
II.
Having concluded § 2000e-5(g)(2)(B) has no impact on § 1981,1 now turn to the application of the law to the facts of this case. Because § 2000e-5(g)(2)(B) did not alter the mixed-motive analysis under § 1981, I must analyze this case under the Price Waterhouse standard, pursuant to which an employer’s mixed-motive in making an employment decision remains a complete defense to liability to a § 1981 claim. Accordingly, if the Guild can establish no triable issue of fact exists that it would have fired Metoyer in the absence of any discriminatory motive, the district court’s summary judgment for the Guild must be affirmed.
Metoyer asserts three § 1981 claims in her complaint: (1) discriminatory breach of contract for failing to confirm her as the National Director of Affirmative Action; (2) wrongful termination; and (3) retaliation. The majority affirms the district court’s summary judgment on the discriminatory breach of contract claim, and I join that holding. However, I disagree with the majority’s holding on the retaliation and wrongful termination claims, which re*950verses the district court’s grant of summary judgment for the Guild. I would affirm the district court’s summary judgment on all three claims.16
A.
The majority holds the district court erred in granting summary judgment on the wrongful termination claim because Metoyer presented direct and circumstantial evidence demonstrating that the Guild harbored discriminatory animus toward African Americans. I disagree. I would affirm the district court’s grant of summary judgment for the Guild and hold Metoyer failed to establish a prima facie case of wrongful termination based on discrimination.
To establish a prima facie case of discrimination, Metoyer must show (1) she belongs to a protected class, (2) she was qualified for the position, (3) she was subjected to an adverse employment action, and that (4) similarly situated individuals outside her protected class were treated more favorably. Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 658 (9th Cir.2002).
Metoyer fails to establish the fourth element of her prima facie case (“disparate treatment”). To attempt to establish disparate treatment, Metoyer offers solely her own declaration. Therein, Metoyer declares she told John McGuire about the misuse of the Industry Advancement and Cooperation Fund (“IACF”) grants by Shawna Brakefield, Sharon Jensen, and Paul Ward, but they were neither investigated nor disciplined. [ER 38:21-23].
As an initial matter, Metoyer’s declaration is insufficient because it does not establish Brakefield, Jensen, and Ward were outside her protected class. The declaration neither identifies their respective races nor states they are all not African American.
Even if I were to assume Brakefield, Jensen, and Ward are Caucasian, as Me-toyer’s briefs assert, Metoyer’s declaration is insufficient because it does not show Brakefield, Jensen, and Ward were “similarly situated [to Metoyer] ... in all material respects.” Moran v. Selig, 447 F.3d 748, 755 (9th Cir.2006); Vasquez v. County of L.A., 349 F.3d 634, 641 (9th Cir.2004) (holding “individuals are similarly situated when they have similar jobs and display similar conduct”); id. at 641 n. 17 (citing Hollins v. Atlantic Co., Inc., 188 F.3d 652, *951659 (6th Cir.1999) (holding that, to be similarly situated, an employee must have the same supervisor, be subject to the same standards, and have engaged in the same conduct)). First, Metoyer was a grant administrator, whereas according again to Metoyer, Brakefield, Jensen, and Ward were grant recipients. [ER 38:23 (“these three grant recipients”)]. Metoyer’s declaration does not identify who, if anyone, at the Guild administered the Brakefield, Jensen, and Ward grants. Second, unlike Metoyer, who was a Guild employee, Brakefield and Ward were “independent contractors;” 17 Jensen is not identified as either a Guild employee or an independent contractor.18 [ER 38:21-2]. Third, Me-toyer’s declaration does not establish or even claim Brakefield, Jensen, and Ward (1) violated the Guild’s strict policy prohibiting Guild employees from receiving compensation of any kind from IACF funds, or (2) fabricated invoices that had the effect of concealing the true recipient of IACF funds from the Guild. Finally, the declaration shows that in the case of Brakefield, Jensen, and Ward, the Guild was confronted only with suspicions, whereas in Metoyer’s case, it was confronted with invoices admitted by Metoyer to have been fabricated from whole cloth by Metoyer personally, or her PRC business partner, Rae-helle Bolding.
Accordingly, Metoyer failed to make out a prima facie case of wrongful termination because she failed to establish similarly situated individuals outside her protected class were treated more favorably.19 Thus, I would affirm the district court’s grant of summary judgment for the Guild on Metoyer’s wrongful termination claim.
B.
Metoyer’s retaliation claim survives the three-step McDonnell Douglas analysis.20 Nevertheless, I disagree with the majority that the Guild has not presented sufficient evidence to support summary judgment based on the mixed-motive defense. I would affirm the district court’s summary judgment for the Guild on the retaliation claim because no triable issue of fact exists as to the Guild’s mixed-motive defense.
Under the mixed-motive defense, an employer can avoid liability by establishing that it would have made the same decision absent any discriminatory motive. See Price Waterhouse, 490 U.S. at 244-45, 109 S.Ct. 1775. Even though the majority is correct that the mixed-motive inquiry is a factual one, this case presents an unusual set of facts warranting summary judgment for the Guild.
What makes this case fit for summary adjudication is that the underlying facts of *952Metoyer’s misconduct are admitted by Me-toyer herself. It is undisputed that the investigation began when Sofia Banks, a temporary employee at the Guild and an African American woman, discovered a suspicious invoice in Metoyer’s inbox. Me-toyer admits this invoice was fabricated. As Metoyer testified in her deposition, she had her PRC partner, Rachelle Bolding, create the invoice charging the Guild $10,736 for seven events that never occurred. [See ER 46:92-94]. Metoyer then signed a check request listing the same seven events, causing the Guild to transfer $10,736 in Guild funds to LMU to cover Family Fun Fest expenses. [ER 4:500-01]. LMU then paid a portion of these funds to Celine Bae, a Guild employee, and to Metoyer’s husband’s production company.
It is also undisputed that when LMU submitted an invoice to Metoyer for $2,197 in excess Family Fun Fest costs, which listed Bae and Metoyer’s husband’s company as payees, Metoyer personally fabricated a bogus invoice on LMU letterhead (without mention of Bae or Metoyer’s husband) that charged the Guild’s IACF trust account $2,197 for a reception in Dr. George Gerbner’s honor.21 Metoyer submitted this bogus invoice, not the one identifying Bae and Metoyer’s husband’s company as payees, and a signed check request to the Guild’s accounting department, causing it to pay $2,197 in IACF funds to LMU.
Similarly, it is undisputed that Metoyer caused Peter Nguyen to receive $5,000 in IACF grant funds for performing legal research and offering legal advice while he was not a licensed attorney. It is also undisputed that Nguyen received this payment while a Guild employee, an apparent22 violation of the Guild’s undisputed *953policy strictly prohibiting Guild employees from receiving compensation from IACF funds. Also undisputed is the fact that Metoyer caused Rachelle Bolding to receive $20,000 in IACF funds shortly after Bolding left the Guild. From the Guild’s perspective, the payment to Bolding was particularly egregious because the Guild had reason to believe Bolding and Metoyer were business partners in PRC,23 an event planning company.
These findings of misconduct were the result of an investigation conducted by PwC, a well-respected third-party accounting firm. PwC was hired by IACF, a separate legal entity from the Guild. The IACF board voted to retain PwC to investigate all outstanding grants at a board meeting where the trustees discussed the need for greater accountability of grant funds-in general terms and without naming Metoyer. PwC independently concluded Metoyer made questionable payments to Bae, Nguyen, Bolding, and Metoyer’s husband’s production company.
Metoyer admitted to all of this misconduct when she was interviewed by two PwC auditors in the presence of her attorney. [ER 73:115]. Thus, the facts underlying Metoyer’s misconduct — the fabricated invoices, the transfers of funds in violation of the Guild’s policies, the lack of documentation for services rendered — are all undisputed. Metoyer contests only the propriety of the transactions, claiming that she was authorized to make payments, but does not contest the Guild strictly prohibits current employees from receiving compensation in any form from IACF funds.
After interviewing Metoyer and giving her an opportunity to explain these questionable transactions, the Guild concluded she failed to provide adequate explanations. There is no evidence in the record suggesting either PwC’s or the Guild’s conclusions were not made in good faith.
Nevertheless, the majority holds three pieces of evidence in the record undermine the Guild’s mixed-motive defense and create a triable issue of fact. First, the majority relies on “Metoyer’s allegation that other persons engaged in questionable practices related to IACF funds and faced no disciplinary consequences.” The “other persons” to which the majority refers are presumably Brakefield, Jensen, and Ward. For the reasons outlined above in Part II.A, however, Brakefield, Jensen, and Ward are not similarly situated to Metoyer and do not provide a valid basis for comparison.
Further, Brakefield, Jensen, and Ward were not investigated because of Metoyer’s own refusal to cooperate with an investigation. Following the March 22, 2001, PwC interview where Metoyer claimed Brake-field, Jensen, and Ward had engaged in questionable conduct, John McGuire decided to investigate Metoyer’s allegations. [ER 56:55-6]. Instead of terminating Me-toyer for her theft, McGuire placed her on paid administrative leave and retained *954O’Melveny & Myers, then completely unaffiliated with the Guild, to investigate Me-toyer’s claims. [Id,.] Nevertheless, O’Mel-veny & Myers was unable to make any findings with respect to Metoyer’s claims because Metoyer refused to participate in the investigation, “notwithstanding numerous requests that she provide information regarding any and all matters she wanted investigated.” [Id.] McGuire decided to fibre Metoyer only after he was informed that O’Melveny & Myers was unable to determine the merits of Metoyer’s allegations due to her refusal to cooperate. [ER 56:6-7]. Metoyer now asserts, and the majority holds, there is a triable issue of fact as to the Guild’s mixed-motive defense because the Guild did not investigate misconduct by Brakefield, Jensen, and Ward-even though Metoyer herself undermined the investigation. According to the majority, Metoyer can have her cake (thwart the investigation by refusing to cooperate) and eat it too (sue the Guild for the failed investigation).
Second, the majority cites to a written declaration by Ron Thompson, C.P.A., that “there were questions concerning whether the [PwC] investigation truly encompassed all outstanding grants.” First, it is axiomatic that asking a question does not establish the facts related in the question. Thompson’s “questions” prove nothing, one way or the other. Second, Thompson based his “questions” on the final audit report submitted by PwC, which contained only “the results of [the] grant review for grants managed by” Metoyer. [ER 4:521]. The majority fails to explain, however, how this statement evinces any bias on the part of the Guild.
The majority’s imputation of bias to the Guild based on the statements in the PwC report is inapposite. PwC was retained by IACF, which is a separate legal entity from the Guild. [ER 73:12-13, 73:111-12]. Indeed, the Guild, as a recipient of IACF grants, was the target of PwC’s investigation, not its overseer. Thus, the Guild was not in a position to influence PwC’s investigation.
Further, Metoyer was not the sole subject of the PwC audit because it is undisputed that PwC ultimately investigated 26 IACF grants, only three of which were administered by Metoyer. [ER 73:111-12]. James Hunt (“Hunt”), who was one of the two PwC employees to conduct the audit, stated in a declaration that PwC was not “asked to investigate only Dr. Metoyer’s grants, but all grants that had been awarded to the Guild as well as grants that had been awarded to other entities.” [Id.] Bruce Dow, the Administrative Director of the IACF, stated in his declaration that five other grant administrators at the Guild were investigated, four of whom were Caucasian and one of whom was an African American woman. [ER 73:14]. Hunt stated the reason why the final report detailed misconduct only by Metoyer was because PwC “did not find any signs of questionable expenditures or irregularities with respect to any [other] IACF grants.” [ER 73:112].
Finally, the majority also finds support from the statement of Daniel Smith-Christopher, a professor at LMU. The majority reasons that because PwC’s interview with Dr. Smith-Christopher focused only on Metoyer, PwC’s investigation must have been influenced by discriminatory animus toward Metoyer. The reason why PwC questioned Dr. Smith-Christopher only about Metoyer is simple: PwC found evidence that Metoyer, and only Metoyer, entered into an “escrow agreement”24 with *955LMU wrongfully to transfer the Guild’s funds. Where there was no evidence suggesting other Guild employees used LMU to engage in misconduct, there was no reason for PwC to question the LMU officials about any other employee.
In short, the majority sees smoke where there is no fire. Based on the foregoing evidence, no triable issue of fact exists that the Guild would have terminated any employee found to have engaged in similar misconduct. Consequently, I would affirm the district court’s summary judgment for the Guild on the retaliation claim.
C.
I also dissent from the majority’s reversal of summary judgment on Metoyer’s discrimination and retaliation claims under the California Fair Employment and Housing Act (“FEHA”). I agree with the majority that the district court erred in interpreting Metoyer’s statement in her supplemental brief on a preemption issue as stipulating to the dismissal of her FEHA claims.
Notwithstanding this error, I would affirm the dismissal of Metoyer’s FEHA claims on alternate grounds supported by the record. Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir.2003) (“We may affirm a district court’s judgment on any ground supported by the record, whether or not the decision of the district court relied on the same grounds or reasoning we adopt.”). Metoyer's state law discrimination claim fails because, as discussed above in Part II.A, Metoyer has failed to establish a prima facie case of discrimination. See Tarin v. County of L.A., 123 F.3d 1259, 1263 n. 2 (9th Cir. 1997) (noting California courts apply the Title VII framework to FEHA claims).
Likewise, I would affirm the district court’s grant of summary judgment on Metoyer’s FEHA retaliation claims because, as discussed above in Part II.B, no triable issue of fact exists as to the Guild’s mixed-motive defense.25
III.
In sum, the majority got it wrong as to the law and as to the facts. The majority added words to a statute where the words do not exist, and the majority created a triable issue of fact where no triable issue of fact exists. I would affirm the district *956court’s grant of summary judgment for the Guild in its entirety.
I respectfully dissent.
. Also named as Defendants were John McGuire, the Guild's Acting Executive National Director, and Leonard Chassman, the Guild's Hollywood Executive Director. For the sake of clarity, I will refer to all Defendants collectively as “the Guild.”
. Metoyer did not bring a Title VII action for discrimination in employment. She did not file a claim with the Equal Employment Opportunity Commission (“EEOC”). She sued only under 42 U.S.C. § 1981, which provides a more generous avenue of relief than Title VII. See infra note 11.
.Pub.L. No. 102-166, 105 Stat. 1071 (effective Nov. 21, 1991).
. U.S. Const., art. I., sec.l.
. Inexplicably, the majority opinion does not apply the limitations on the mixed-motive defense to retaliation actions brought under § 2000e-3 of Title VII, upon the common sense ground that the limitations apply only to "actions brought under section 2000e-2(m) of this title.” § 2000e-5(g)(2)(B). It is difficult to fathom why the limitation does not apply to a statute just a subsection away because it is not named in the limitation, but does apply to a statute in another section of the United States Code, similarly not named. See infra Part I.C.
. See also Lopez v. S.B. Thomas, Inc., 831 F.2d 1184 (2nd Cir.1987) (applying the McDonnell Douglas framework from Title VII case law to analyze a § 1981 action); Lewis v. Univ. of Pittsburgh, 725 F.2d 910, 915 n. 5 (3rd Cir.1983) (holding § 1981 and Title VII actions require the same elements of proof and collecting authority from the Second, Fourth, Fifth, and Eighth Circuits).
. See also Pulliam v. Tallapoosa County Jail, 185 F.3d 1182, 1184 (11th Cir.1999) (holding the mixed-motive defense is an affirmative defense to liability in § 1981 actions); Thomas v. Denny’s, Inc., 111 F.3d 1506, 1511-12 (10th Cir.1997) (holding it was error for the district court to reject a mixed-motive instruction in a § 1981 case); Hargett v. Nat'l Westminster Bank, USA, 78 F.3d 836, 840-41 (2nd Cir.1996) (holding a Price Waterhouse mixed-motive instruction is proper in a § 1981 action if "there is evidence to show that an employment determination was the product of a mixture of legitimate and illegitimate motives” (quotation marks and citations omitted)); Williams v. Fermenta Animal Health Co., 984 F.2d 261, 264-65 (8th Cir.1993) (holding the district court gave a proper mixed-motive instruction for plaintiff’s claims under § 1981 and Title VII); New Burnham Prairie Homes, Inc. v. Vill. of Burnham, 910 F.2d 1474, 1483 (7th Cir.1990) (holding a mixed-motive instruction is proper in a claim brought under §§ 1981 and 1982).
.The majority asserts, however, that at the time of the 1991 CRA’s enactment, the mixed-motive defense to § 1981 was a defense only to damages, but not to liability. To support this assertion, the majority relies on a number of Ninth Circuit opinions that predate the Supreme Court’s decision in Price Waterhouse and that apply the mixed-motive defense only to damages, but not to liability, in Title VII actions.
Nevertheless, Price Waterhouse, which was decided before the 1991 CRA’s enactment, changed the legal landscape for the mixed-motive defense. After Price Waterhouse, the mixed-motive defense became a complete bar to liability, not merely a defense to damages. *945Price Waterhouse, 490 U.S. at 244-45, 109 S.Ct. 1775 ("[0]nce a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability ... by proving that it would have made the same decision even if it had not allowed gender to play such a role.” (emphasis added) (footnote omitted)).
The fact that Price Waterhouse was a Title VII decision is of no material consequence. At the time of the Price Waterhouse decision, we were defining the liability standards under § 1981 by reference to Title VII case law. See Lowe, 775 F.2d at 1010. As a corollary, and as the majority concedes, Title VII case law on the mixed-motive defense also controlled the mixed-motive defense under § 1981. Thus, when Title VII case law on the mixed-motive defense was altered by Price Waterhouse, so was the mixed-motive defense under § 1981. Consequently, the mixed-motive defense became a complete bar to liability in § 1981 actions as well. See supra note 7 and accompanying text (citing authorities from the Ninth Circuit as well as from the Second, Seventh, Eighth, Tenth, and Eleventh Circuits).
. Section 101 of the 1991 CRA states:
Section 1977 of the Revised Statutes (42 U.S.C.1981) is amended—
(1) by inserting “(a)” before "All persons within”; and
(2) by adding at the end the following new subsections:
“(b) For purposes of this section, the term 'make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”
"(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”
Id. at 1071-72.
. The majority's interpretation of § 2000e-5(g)(2)(B) also renders another part of that provision superfluous. Section 2000e-5 (g) (2) (B) (i) states that when the defendant successfully asserts a mixed-motive defense, the court may not award damages, but may award, inter alia, "attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this tide.” Id. (emphasis added). ' While the majority does not expressly address whether attorney’s fees will be available to a plaintiff in a § 1981 action when the defendant proves the mixed-motive defense, this conclusion is implicit in its holding that § 2000e-5(g)(2)(B) is “incorporated” into § 1981. As a result, the majority also renders superfluous the portion of § 2000e-5(g)(2)(B)(i) that allows the recovery of attorney’s fees attributable "only to the pursuit of a claim under section 2000e-2(m) of this title.”
. I am loath to speculate as to Congress's reasons for limiting the mixed-motive defense in Title VII discrimination actions, but not in § 1981 actions. Nevertheless, for those who look beyond the statutory text for congressional intent, I note that § 1981 provides a much more attractive avenue of relief to plaintiffs than does Title VII. First, Title VII applies only to employers with fifteen or more employees, whereas § 1981 has no such threshold requirement. 42 U.S.C. § 2000e(b). Second, Title VII requires the plaintiff to exhaust administrative remedies, such as filing a claim with the EEOC (a step that Metoyer did not take), before seeking a private action for damages, whereas § 1981 has no such requirement. 42 U.S.C. § 2000e-5(f). Third, there are limits on compensatory and punitive damages recoverable under Title VII, whereas no such limits exist for damages under § 1981. 42 U.S.C. § 1981a(b)(3). Finally, Title VII covers only employment discrimination, but § 1981 is not so limited. Because § 1981 provides a more generous avenue for relief, Congress may have wanted to retain the mixed-motive defense as a complete bar to liability under § 1981, while limiting its applicability only to the more limited damages recoverable under Title VII.
. Indeed, the word "motive,” let alone "mixed-motive," does not even appear in the Fonseca opinion.
. The majority rejects Marba as relying on “the faulty premise’’ that the mixed-motive defense was a complete defense to liability under § 1981 before the 1991 CRA's enactment. For the reasons outlined supra note 8, the majority is incorrect. With the Supreme Court's decision in Price Waterhouse and before the 1991 CRA’s enactment, the mixed-motive defense became a complete defense to liability under § 1981 actions as well.
. The majority’s conclusion that mixed-motive is a complete defense to liability for § 1981 retaliation actions also undermines its earlier conclusion that the mixed-motive defense was only a defense to damages, but not to liability, under § 1981 when the 1991 CRA was enacted. See supra note 8.
. The Eighth Circuit holds § 2000e-5(g)(2)(B) does apply to actions brought under the Americans with Disabilities Act ("ADA”). See Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995). Unlike § 1981, however, the text of the ADA expressly incorporates the "powers, remedies, and procedures” of Title VII, including § 2000e-5. See 42 U.S.C. § 12117(a).
. The majority chooses not to use the McDonnell Douglas framework in conducting its analysis. Instead, the majority relies on our decision in McGinest v. GTE Service Carp., 360 F.3d 1103, 1122 (9th Cir.2004), to forego the McDonnell Douglas burden-shifting framework. In McGinest, we held "when responding to a summary judgment motion ... [the plaintiff] may proceed by using the McDonnell Douglas framework, or alternatively, may simply produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated [the employer].” Id. While the majority is correct that " 'nothing compels the parties to invoke the McDonnell Douglas presumption,' " id. (citations omitted), where, as here, the plaintiff relied exclusively on the McDonnell Douglas framework before the district court, we ought not change to a different standard on appellate review for no apparent reason. [SER 65:7-10]. Indeed, we have previously held:
Ordinarily, we decline to consider arguments raised for the first time on appeal. This rule serves to ensure that legal arguments are considered with the benefit of a fully developed factual record, offers appellate courts the benefit of the district court’s prior analysis, and prevents parties from sandbagging their opponents with new arguments on appeal.
Dream Palace v. County of Maricopa, 384 F.3d 990, 1005 (9th Cir.2004) (citations omitted). Neither Metoyer nor the majority asserts any justification for departing from this general rule. Therefore, I conduct my analysis using the McDonnell Douglas framework.
. Metoyer’s declaration does not indicate whether Brakefield and Ward were independent contractors of the Guild or of the IACF.
. Of course, as on all elements of a disparate treatment case, the claimant has the burden of showing others were "similarly situated” before she can establish she was treated differently. This burden, Metoyer utterly fails to carry.
. Even if Metoyer established a prima facie case of wrongful termination, the Guild would still be entitled to summary judgment because no triable issue of fact exists as to the Guild's mixed-motive defense. See infra Part II.B.
.First, the district court held plaintiff established a prima facie case of retaliation, which the Guild does not appeal. Second, the Guild met its burden of asserting a nondiscriminatory reason for Metoyer's termination, namely, Pricewaterhouse Cooper's ("PwC") conclusions that Metoyer transferred the Guild's funds to friends, family, and business partners, and falsified invoices. Third, Metoyer has established a triable issue of fact as to pretext because there is a nexus sufficient for purposes of summary judgment, albeit a tenuous one, between Leonard Chassman's discriminatory remarks and Metoyer’s termination.
. No separate event honoring Dr. Gerbner was ever held. Rather, although acknowledging that Dr. Gerbner was not in attendance, Metoyer claims Dr. Gerbner was "honored” at the Family Fund Fest. There is no evidence that Dr. Gerbner even knew he was being "honored” or how he was "honored.”
. Metoyer offers no evidence disputing the following facts that suggest she fabricated a consulting job in order to supplement Nguyen’s Guild salary with $5,000 in IACF grant funds after the Guild decided not to meet Nguyen’s salary demand-which just happened to be $5,000. In 2000, Nguyen was employed in the Guild's Special Projects Division. [ER 46:18]. In December 2000, a strike involving the Guild ended and Nguyen’s position was eliminated. [Id.] Knowing that his position was coming to an end, Metoyer interviewed Nguyen to be her Executive Associate and selected him for the position on December 7, 2000. [Metoyer’s Declaration; ER 46:21], Salary negotiations between Jeffery Spencer ("Spencer”), a recruiter in the Guild’s human resources department, and Nguyen reached an impasse with Nguyen demanding $55,000 and the Guild offering $50,000. [ER 46:18], Shortly thereafter, on December 28, 2000, Metoyer sent Spencer an e-mail stating, "We have a plan.” [ER 46:23].
Five days later, Nguyen submitted a letter to LMU stating: "At the behest of Dr. Patricia Heisser-Metoyer of the Screen Actors Guild, I have rendered legal consultation services in furtherance of the skills bank reorganization project. Please accept this invoice for $5,000 in consideration for such services.” [ER 46:214]. On January 3, 2001, Nguyen accepted employment as Metoyer’s Executive Associate with a start date of January 8, 2001, and a starting salary of $50,000. [ER 46:212]. On January 8, 2001, Hope Singer, outside legal counsel for the Guild, met with Metoyer and the Guild’s in-house counsel, Vicki Shapiro, regarding the need for a legal opinion on whether it was lawful for the Guild to ask Guild members to identify their race, nationality, gender, disability, and other characteristics on the Skills Bank questionnaire — the same legal question Nguyen requested $5,000 in compensation for researching. [ER 52:2-3]. At no time during this meeting did Me-toyer indicate Nguyen had been asked to research or actually researched this issue. [Id.] Singer researched and analyzed the issue for *953two hours and informed Shapiro of her conclusion that the questionnaire was in full compliance with the law. [Id.] On January 29, 2001, Nguyen received $5,000 in IACF funds for legal consultation services on the same issue, by happenstance the exact sum the Guild was unwilling to add to his salary. Of course, no one contends Metoyer had the authority to overrule Spencer in setting Nguyen's salary.
. PwC concluded the first initials of Patricia Metoyer, Rachelle Bolding, and Celine Bae make up the name "PRC.” Metoyer admits the “P” in "PRC” is derived from her first name (Patricia). [ER 38:47-48]. However, Metoyer disputes she was a business partner in PRC, contending instead that she acted as a mentor and a “big sister” to Rachelle Bold-ing and Celine Bae in PRC’s operations. [Id.]
. “Escrow” was the term Metoyer applied to the agreement. Of course, it was nothing of the kind. An "escrow” requires a deposit of money pursuant to an agreement that calls *955for the transfer of the money upon the happening of an event. The escrow holder is a neutral party who takes instructions from both parties to the escrow and in strict adherence to the escrow agreement or instructions. Here, there was (1) no escrow agreement, (2) no second party with an interest in the money that gave instructions; and (3) no deposit of title to property or other action required to cause the escrow holder to transfer funds. LMU was no “escrow holder”; it was a “cut out” used to cover Metoyer's tracks as to who was getting the Guild's money. So long as the payees' names were only at LMU, they were not at the Guild. Anybody looking at the Guild’s records would see only “LMU” as a payee. "[T]he only apparent reason to make the transfer to LMU to then receive the invoices and make the payments was to prevent the Guild’s Accounting Department from questioning and learning of the true recipients or personal uses of the funds.” [Hunt Declaration, ER 73:118].
. Although no California court has explicitly adopted the mixed-motive defense as a bar to liability under FEHA, California courts have adopted a jury instruction incorporating that defense. See BAJI 12.26 (“If you find that the employer's action, which is the subject of plaintiff’s claim, was actually motivated by both discriminatory and non-discriminatory reasons, the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision.”). Like § 1981, FEHA places no limitations on the scope of this defense.