NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARNOLD CHEW, No. 16-15437
Plaintiff-Appellant, D.C. No. 3:13-cv-05286-MEJ
v.
MEMORANDUM*
CITY AND COUNTY OF SAN
FRANCISCO; LAGUNA HONDA
HOSPITAL AND REHABILITATION
CENTER,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding
Argued and Submitted October 16, 2017
San Francisco, California
Before: HAWKINS and W. FLETCHER, Circuit Judges, and KRONSTADT, **
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John A. Kronstadt, United States District Judge for the
Central District of California, sitting by designation.
Plaintiff-Appellant Arnold Chew appeals the decision by the district court1
granting the motion for summary judgment brought by Defendants-Appellees City
and County of San Francisco (collectively, the “City”) and Laguna Honda Hospital
(“LHH”). Plaintiff also appeals from related evidentiary rulings and from the
award of costs.2 The underlying claims arise from Plaintiff’s employment with
LHH, which is owned by the City. Plaintiff alleged discrimination and retaliation
based on his association with an African-American colleague in violation of Title
VII of the Civil Rights Act, 42 U.S.C. §§ 2000 et seq., 42 U.S.C. § 1981, and the
California Fair Employment and Housing Act, Cal. Gov’t Code § 12940
(“FEHA”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo
a decision granting summary judgment. Devereaux v. Abbey, 263 F.3d 1070, 1074
(9th Cir. 2001) (en banc) (citing Weiner v. San Diego Cty., 210 F.3d 1025, 1028
(9th Cir. 2000)). We affirm.
1
With the express consent of Plaintiff and without objection by Defendants,
Magistrate Judge James presided in this action.
2
Plaintiff also filed two requests for judicial notice in connection with this
appeal. Both are denied. Certain documents for which judicial notice has been
requested are already included in the record. Judicial notice as to those documents
is denied as moot. See G.M. ex rel. Marchese v. Dry Creek Joint Elementary Sch.
Dist., 595 F. App’x 698, 700 (9th Cir. 2014). Judicial notice of the other
documents is inappropriate because it would supplement the record with
documents that Plaintiff could have presented, but failed to present to the district
court. See Ctr. for Bio-ethical Reform, Inc. v. City and Cty. of Honolulu, 455 F.3d
910, 918 n.3 (9th Cir. 2006).
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Under Title VII and FEHA, a plaintiff must exhaust all administrative
remedies before filing a civil action in which employment discrimination or
retaliation claims are alleged. See, e.g., Paige v. California, 102 F.3d 1035, 1041
(9th Cir. 1996); Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir. 2001)
(citing Yurick v. Superior Court, 257 Cal. Rptr. 665, 667 (Cal. Ct. App. 1989)).
Consequently, the exhaustion requirement limits the scope of those claims that can
be advanced in a judicial proceeding that is filed after the completion of the
administrative process of the Equal Employment Opportunity Commission
(“EEOC”) or the California Department of Fair Employment and Housing
(“DFEH”). See Sommatino v. United States, 255 F.3d 704, 707–09 (9th Cir. 2001).
“The scope of the written administrative charge defines the permissible scope of
the subsequent civil action . . . Allegations in the civil complaint that fall outside of
the scope of the administrative charge are barred for failure to exhaust.” Rodriguez,
265 F.3d at 897 (citations omitted). Therefore, a civil action may not include
different alleged acts of discrimination or retaliation “unless the new claims are
like or reasonably related to the allegations contained in the EEOC charge.” Green
v. Los Angeles Cty. Superintendent of Schs., 883 F.2d 1472, 1475–76 (9th Cir.
1989) (internal citations and quotation marks omitted).
The complaint that was filed in this action alleged associational
discrimination and retaliation based on Plaintiff’s relationship with a colleague,
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Leonard Collins, who is an African-American. The district court correctly
concluded that this alleged discrimination and retaliation was not “reasonably
related” to the administrative charges that Plaintiff presented to the EEOC and the
DFEH.
On January 18, 2013, Plaintiff filed a charge with the DFEH alleging that he
experienced discrimination, harassment and retaliation. Plaintiff stated “Other” as
the basis for these claims. The charge included detailed allegations, but made no
mention of Collins or associational discrimination. On February 8, 2013, Plaintiff
withdrew that charge. On April 22, 2013, Plaintiff filed a new charge with the
DFEH, which he also filed with the EEOC. In its detailed allegations, it identified
only age and disability as the bases for the alleged discrimination. Thus, it did not
identify race discrimination or associational discrimination, and made no reference
to Plaintiff’s relationship with Collins. 3
3
The “rule of liberal construction,” which requires courts to interpret the
scope of an administrative charge “with utmost liberality” for the purposes of
exhaustion analysis “does not suggest that a plaintiff sufficiently exhausts his
administrative remedies under Title VII by merely mentioning the word
‘discrimination’ in [the] EEOC administrative charge.” Freeman v. Oakland
Unified Sch. Dist., 291 F.3d 632, 636–37 (9th Cir. 2002). That on May 7, 2013,
Plaintiff’s counsel sent a letter to the DFEH referring to discrimination based on
Plaintiff’s association with Collins does not warrant a different result. No amended
complaint was filed with either the DFEH or the EEOC. Further, because this
argument as to the scope of the administrative claims was not made to the district
court, it was waived. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]n
appellate court will not consider issues not properly raised before the district
court.”).
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The purpose of administrative exhaustion is to provide an administrative
agency with sufficient information so that it can conduct an appropriate
investigation about the alleged discrimination. See Freeman 291 F.3d at 636.
Administrative proceedings may result if warranted by the investigation. Such
proceedings may make it unnecessary for a plaintiff to bring a civil action. A
failure to comply with the exhaustion requirements undermines these important
principles. Because Plaintiff failed adequately to disclose to the EEOC and the
DFEH the claims advanced here, he failed to exhaust his administrative remedies.
This barred his Title VII and FEHA claims, and warranted summary judgment for
Defendants.
Even if Plaintiff had exhausted his administrative remedies, the result would
be the same because Plaintiff’s claims of discrimination and retaliation fail on the
merits. The claims here under Title VII, 42 U.S.C. §§ 2000 et seq., and 42 U.S.C. §
1981 are governed by the three-step burden-shifting process established by
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Metoyer v.
Chassman, 504 F.3d 919, 930–31 (9th Cir. 2007). California has adopted the
McDonnell Douglas test for FEHA claims. See Moore v. Regents of the Univ. of
Calif., 206 Cal. Rptr. 3d 841, 856 (Cal. Ct. App. 2016) (citing Guz v. Bechtel Nat’l,
Inc., 8 P.3d 1089, 1113–14 (Cal. 2000)).
Under that framework, a plaintiff must first present sufficient evidence to
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establish a prima facie basis for the claimed discrimination or retaliation. See
Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105–06 (9th Cir. 2008). If the
plaintiff meets that burden, the defendant is then required to present evidence that
is sufficient to “articulate a legitimate, nondiscriminatory reason for its allegedly
discriminatory conduct.” Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 640 (9th
Cir. 2003). If it does so, the plaintiff must then present evidence that shows that
“the employer’s proffered nondiscriminatory reason is merely a pretext for
discrimination.” Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037
(9th Cir. 2005) (citing Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir.
2000)).
Plaintiff presented sufficient evidence to establish a prima facie case of
discrimination and retaliation as required by the first step in the McDonnell
Douglas process. Plaintiff has been employed at LHH since 1998. Although
substantial performance issues have arisen during his tenure, he has made a
sufficient prima facie showing that he is qualified for his position. It is undisputed
that Plaintiff had an association with Collins. It is also undisputed that in October
2011, he was instructed to limit the time he was spending in assisting Collins, and
instead to devote his time to improving his own performance. Finally, Plaintiff
offered sufficient evidence to support a prima facie showing of adverse
employment actions. See Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).
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This included negative performance reviews, suspensions from work and the
adoption in October 2012 of a process used by LHH that it calls a “Development
Plan.” Its claimed purpose was to monitor and improve Plaintiff’s performance.
Based on the foregoing, Plaintiff met the “minimal” evidentiary standard to
establish a prima facie case under McDonnell Douglas. Chuang v. Univ. of Cal.
Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000) (quoting Wallis v. J.R.
Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)).
In response, Defendants provided sufficient evidence of nondiscriminatory
justifications for the allegedly adverse employment actions. As early as 2000,
issues arose regarding Plaintiff’s job performance, and additional negative reviews
were communicated to Plaintiff in February 2009 and May 2010. Most of this
negative performance history predated the challenged conduct, which allegedly
started in the fall of 2011. Indeed, several of these performance reviews were
communicated prior to July 2010, when Collins was first employed by LHH.
Plaintiff was also suspended from work several times due to specific issues relating
to his job performance. Defendant also relies on the need for the Development Plan
as further evidence of the shortcomings of Plaintiff’s performance. Collectively,
this evidence is sufficient to meet the standard for showing a nondiscriminatory
reason for the challenged conduct.
Turning to the final step in the process, Plaintiff failed to present evidence
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sufficient to raise a triable issue of material fact as to whether these
nondiscriminatory justifications were pretextual. See Dominguez-Curry, 424 F.3d
at 1037–38. Direct evidence of pretext is “evidence which, if believed, proves the
fact [of discriminatory animus] without inference of presumption.” Godwin v. Hunt
Wesson, Inc. 150 F.3d 1217, 1221 (9th Cir. 1998) (alterations in original) (quoting
Davis v. Chevron, U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994). It “typically
consists of clearly sexist, racist, or similarly discriminatory statements or actions
by the employer.” Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th
Cir. 2005) (citations omitted). Plaintiff presented no direct evidence of
discriminatory animus that allegedly arose from his relationship with Collins.4
Absent sufficient direct evidence of pretext, Plaintiff must offer “specific
and substantial” indirect evidence of pretext. EEOC v. Boeing Co., 577 F.3d 1044,
1049 (9th Cir. 2009) (citing Coghlan, 413 F.3d at 1095). The evidence offered by
Plaintiff was not sufficient to meet this heightened evidentiary burden. Plaintiff
argues that performance issues as to his work did not start until he began
associating with Collins. As noted, Collins was first employed by LHH in July
4
As noted, Plaintiff presented evidence that in October 2011, a supervisor
told him to stop assisting Collins at work, and instead to devote his time to
improving his own job performance. He also offered evidence that his supervisors
scrutinized his work more closely than that of his co-workers. This evidence is not
sufficient to show a triable issue as to discriminatory animus. Godwin, 150 F.3d at
1221.
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2010. However, Plaintiff received negative performance appraisals as early as
2000, and received several others prior to when Collins was first employed by
LHH. Therefore, the evidence presented by Plaintiff did not constitute “specific
and substantial” indirect evidence of pretext, sufficient to support the claim that
discriminatory animus “more than likely motivated” Plaintiff’s supervisors, or that
the “proffered explanation is unworthy of credence.” Anthoine v. N. Cent. Ctys.
Consortium, 605 F.3d 740, 753 (9th Cir. 2010) (internal citations and quotation
marks omitted).
Plaintiff also failed to establish a triable issue as to municipal liability under
Monell v. Department of Social Services, 436 U.S. 658 (1978). There was no
evidence that either the alleged discrimination or retaliation was the result of an
official policy, a long-standing practice or custom, or the decision of a “final
policymaker.” See Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003).
The evidentiary rulings by the district court as well as its award of costs to
Defendants are reviewed under an abuse of discretion standard. See Draper v.
Rosario, 836 F.3d 1072, 1087 (9th Cir. 2016) (citing Save Our Valley v. Sound
Transit, 533 F.3d 932, 945 n.12 (9th Cir. 2003); Tritchler v. Cty. of Lake, 358 F.3d
1150, 1155 (9th Cir. 2004) (citing Freeman v. Allstate Life Ins. Co., 253 F.3d 533,
536 (9th Cir. 2001)). Because there is no showing that any of the evidentiary
rulings was in error, there was no abuse of discretion. The award of $4,399.59 in
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costs was based on the amounts incurred by Defendants in serving certain
documents and subpoenas as well as those incurred for certain transcripts. These
amounts were reasonable and permitted by Fed. R. Civ. P. 54(d)(1). Further,
Plaintiff did not submit sufficient evidence to show that this award would impose
undue financial hardship. Therefore, the district court did not abuse its discretion in
awarding these costs.
AFFIRMED.
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