NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROCCO T. LOMBARDI, an individual, No. 15-55276
Plaintiff-Appellant, D.C. No.
2:13-cv-03328-JAK-AJW
v.
JULIAN CASTRO, Secretary, U.S. MEMORANDUM*
Department of Housing and Urban
Development,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted January 9, 2017**
Pasadena, California
Before: TALLMAN and FRIEDLAND, Circuit Judges, and FABER,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Rocco Lombardi appeals the district court’s grant of summary judgment to
the Department of Housing and Urban Development (“HUD”) in his Title VII
employment retaliation case. Because we conclude that Lombardi did not carry his
burden to show a triable issue of material fact about whether HUD’s denial of his
applications for two higher level positions was caused by a retaliatory purpose, or
that HUD’s reasons for preferring other candidates were pretextual, we affirm.
Title VII of the Civil Rights Act of 1965, 42 U.S.C. 2000e et seq. (“Title
VII”), prohibits retaliation against an employee engaging in an activity protected
by Title VII, such as filing Equal Employment Opportunity (“EEO”) complaints or
participating in a Title VII proceeding. 42 U.S.C. § 2000e-3(a); see Poland v.
Chertoff, 494 F.3d 1174, 1180 (9th Cir. 2007); Ray v. Henderson, 217 F.3d 1234,
1240 n.3 (9th Cir. 2000). There is a three-step burden-shifting framework for
considering a grant of summary judgment in an employment retaliation case.
Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). To establish a
triable issue, the plaintiff first must prove a prima facie case by showing “(1)
involvement in a protected activity, (2) an adverse employment action[,] and (3) a
causal link between the two.” Id. Second, the burden shifts to the defendant to
present a legitimate reason for the adverse employment action. Id. Third, the
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burden shifts back to the plaintiff to “demonstrate a genuine issue of material fact
as to whether the reason advanced by the employer was a pretext.” Id. “Only then
does the case proceed beyond the summary judgment stage.” Id.
Lombardi alleges that he was not selected for Contract Administrator
Oversight Monitor and Senior Project Manager positions because he engaged in
protected activities—filing previous EEO complaints. The parties have agreed that
Lombardi established the first two elements of his prima facie case. They dispute
whether he has shown a causal link between his previous EEO complaints and
being passed over for the promotions.
The third element of a prima facie case requires showing “but-for causation,
not the lessened causation test stated in § 2000e-2(m),” which applies to
discrimination claims. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517,
2533 (2013); T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451,
472-73 (9th Cir. 2015) (applying the but-for causation standard from Nassar at the
summary judgment phase in an Americans with Disabilities Act retaliation case
and explaining that the retaliation standards under the ADA and Title VII are the
same), cert. denied sub nom. San Diego Unified Sch. Dist. v. T.B., 136 S. Ct. 1679
(2016). Lombardi’s evidence fails to create a triable issue that retaliatory purpose
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was a but-for cause of his failure to obtain the promotions in question. The
statements by the relevant decisionmaker that Lombardi relies upon do not suggest
an intent to retaliate against him, one of the two individuals promoted instead of
Lombardi had also engaged in protected EEO activity, and substantial time had
passed between Lombardi’s EEO activity and the decisions not to offer him the
promotions. Even if the various accusations Lombardi and his co-workers make
against the relevant decisionmaker may suggest weaknesses in her management
skills, they do not suggest an intent to retaliate against Lombardi for his protected
activity.
Summary judgment in favor of HUD is also appropriate because, even if
Lombardi had made a prima facie showing of retaliation, he has not presented
evidence that creates a triable issue of fact as to whether HUD’s reasons for
choosing other candidates were pretextual. The pre-formulated interview
questions demonstrate that HUD had a preference for performance-based contract
administrator experience, and Lombardi admitted in his interviews that his limited
experience in that area was one of his weaknesses. The interviewers’
contemporaneous notes also make clear that Lombardi interviewed badly.
Lombardi has not even argued that most of the interviewers had a retaliatory intent,
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and they all agreed he should not be chosen for the positions.
AFFIRMED.
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