Update: On May 17, 2024, the 9th Circuit issued an amended opinion affirming summary judgment, and denied review en banc. Three judges dissented from denial of en banc review.
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In Hittle v. City of Stockton, published August 4, 2023, the 9th Circuit affirmed a district court’s order of summary judgment for the defendant city in a Title VII/FEHA lawsuit. The city’s fire chief alleged that he was terminated from his position based on attendance at a religious leadership event. The city had hired an outside independent investigator to investigate various allegations of the plaintiff’s misconduct. Among the complaints found substantiated was that the plaintiff used city time and a city vehicle to attend a religious event, and approved on-duty attendance of other fire department managers to attend the same event. The investigator also concluded that the chief lacked effectiveness and judgment in leadership, failed to properly report his time off, engaged in potential favoritism of employees based on an undisclosed financial conflict of interest, endorsed a private consultant’s business in violate of city policy; and had a potential conflict between his management role and a relationship with the head of the local firefighter’s union.
The 9th Circuit analyzed the plaintiff’s claims under the McDonnell-Douglas v. Green burden shifting test. Under the test, if the plaintiff states a prima facie case for employment discrimination, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for the challenged actions. If the employer does so, the burden shifts back to the plaintiff to show the proffered reason is pretextual. Alternatively, a plaintiff can prevail merely by showing direct or circumstantial evidence of discrimination, without going through the McDonnell-Douglas framework. On summary judgment, direct evidence of discrimination must prove the fact of discriminatory animus without inference or presumption. The court rejected the plaintiff’s arguments that a supervisor’s reference to the chief being part of a “Christian coalition” and a “church clique” in the department were direct evidence of discriminatory animus. The supervisor did not initiate the “Christian coalition” term; it originated from other members of the department who were unhappy about the chief’s alleged favoritism. Because the supervisor did not use derogatory terms to express her own animus, but rather referenced other legitimate constitutional and business concerns about favoritism and favoring one religion over another, her terminology did not give rise to a genuine issue of animus. The termination notice’s reference to religion was also not direct evidence of discrimination; it was based on the findings in the investigation report that the chief engaged in misconduct by attending the religious event, due to a non-discriminatory reason, lack of benefit to the city. Even if the remarks were perceived as pejorative, such stray remarks are insufficient to establish discrimination. On summary judgment, circumstantial evidence of discrimination must be specific and substantial. A supervisor’s angry threat to the chief to accept a demotion or face a legal battle did not suggest a reasonable inference of religious animus, because religion was not discussed. The timing of the plaintiff being put on administrative leave did not raise a showing of religious animus, because at the time he had been under investigation for months, and the investigator had been hired. That the investigator found some allegations of misconduct “not sustained” does not show pretext in light of the other, sustained findings. Under the McDonnell-Douglas framework, the city articulated an overwhelming number of non-discriminatory reasons for terminating the employment, independently verified by the outside investigator.
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