Coughlan v. American Seafoods

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES W. COGHLAN, 

Plaintiff-Appellant, No. 03-35314

v.

 D.C. No.

CV-02-01165-BJR

AMERICAN SEAFOODS COMPANY

LLC, OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the Western District of Washington

Barbara Jacobs Rothstein, District Judge, Presiding

Argued and Submitted

February 9, 2005—Seattle, Washington

Filed July 7, 2005

Before: Diarmuid F. O’Scannlain, Edward Leavy, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain

7935

7938 COGHLAN v. AMERICAN SEAFOODS CO.

COUNSEL

Scott E. Collins, Helsell Fetterman LLP, Seattle, Washington,

argued the cause for the appellant; Jennfer S. Divine, Helsell

Fetterman LLP, was on the briefs.

Alex J. Higgins, Stokes Lawrence, P.S., Seattle, Washington,

argued the cause for the appellee.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the showing necessary for an

employee to prevail against his employer’s motion for sum-

COGHLAN v. AMERICAN SEAFOODS CO. 7939

mary judgment in this employment discrimination case is

heightened because the person who demoted him had previ-

ously appointed and promoted him; if so, we must decide

whether the employee’s evidence of discrimination is suffi-

cient to meet the heightened burden.

I

James Coghlan is a resident of Washington and a commer-

cial fisherman. From 1997 onward, he was employed by

American Seafoods Company LLC (ASC), which operates

fishing vessels off the coast of the Pacific Northwest and in

Alaskan waters. Until the American Fisheries Act (AFA)1 was

passed in 1998, ASC was owned and operated by a Norwe-

gian parent corporation. The AFA required certain fishing

companies, including those engaged in the Alaska pollock and

cod fisheries, to be American-owned. ASC complied with the

law, but its management remains largely the same as it was

before the AFA was passed and is made up primarily of

native Norwegians.

In 1997 Coghlan was working as master2 of the Victoria

Ann when ASC purchased that vessel. He continued to serve

as master of the Victoria Ann until 1998, when ASC took the

Victoria Ann out of service because provisions of the AFA

effectively required it to reduce its active fleet. Many masters,

mates, and other crewmembers were laid off, but ASC

retained Coghlan and appointed him master of the Katie Ann,

one of its six factory trawlers still in service. The person

responsible for the decision to retain Coghlan was Inge

Andreassen, ASC’s Vice President of Operations and a man

of Norwegian birth. According to Andreassen’s declaration,

1

Pub. L. 105-277, div. C, tit. II, 112 Stat. 2681 (codified as amended in

scattered sections of 16 and 26 U.S.C.).

2

The top two positions on fishing boats of this sort are, first, the “mas-

ter” or “captain” and, second, the “mate.”

7940 COGHLAN v. AMERICAN SEAFOODS CO.

he selected Coghlan for the job despite the availability of at

least one Norwegian candidate, Tor Storkersen.

Coghlan continued to serve as the master of the Katie Ann

until 2000, when ASC decided to place another vessel, the

American Dynasty, back into operation. At that time ASC

appointed Coghlan as mate of the Dynasty; the ship’s master

was Kristjan Petursson, who was born in Iceland. Again,

Andreassen was responsible for the decision to transfer Cogh-

lan. Although the transfer technically involved a step down in

rank, from master to mate, Coghlan’s new position provided

an opportunity to make more money and Coghlan saw it as a

desirable change. Coghlan remained mate of the Dynasty until

November 2001.

On two occasions in September and October 2001, Petur-

sson had to be temporarily absent as master of the Dynasty.

On each occasion, instead of appointing Coghlan as the “relief

master” (i.e., temporary master) as Coghlan would have liked,

Andreassen selected the Norwegian-born Jarl Hogseth to fill

the position. Coghlan considered himself more qualified than

Hogseth, especially since he had been serving on the Dynasty

for more than a year and knew the vessel. Andreassen stated

in his declaration that he made his decision on the basis of a

recommendation from Frank Vargas, ASC’s Fleet Operations

Manager and a native-born American of Filipino ancestry.

In November 2001, Andreassen was dissatisfied with the

Dynasty’s performance. Its production levels were low and its

expenses for equipment replacement were high for a boat of

its size. Michael Hyde, the president of ASC, stated in his

declaration that he instructed Andreassen to change the

Dynasty’s leadership and to allow neither Petursson nor

Coghlan to serve as its master. After consulting with Frank

Vargas as well as Tammy French, ASC’s Vice President of

Human Resources and an American of non-Nordic heritage,

Andreassen removed Coghlan from the vessel and demoted

Petursson to the position of mate. Andreassen stated in his

COGHLAN v. AMERICAN SEAFOODS CO. 7941

declaration that Vargas’s recommendation carried special

weight because he is in day-to-day contact with the ships and

had previously served as master of the Dynasty himself.

Andreassen offered the master position to an American of

non-Norwegian descent, Mike Kraljevich, who was then serv-

ing as a mate on another ASC vessel. Kraljevich declined,

however, and Andreassen instead appointed Ole Knotten, a

man of Norwegian descent. Knotten had little experience fish-

ing in American waters and only obtained a Coast Guard

license shortly before he was to take over as master of the

Dynasty, but he had been working on fishing vessels in Rus-

sia for more than ten years, including a stint as fishmaster on

what Andreassen described as “the most sophisticated factory

trawler ever built.” Around the same time in late 2001,

Andreassen removed the masters on two other ASC vessels,

both of whom were American. Both of their replacements

were Norwegian-born men.

With the 2002 fishing season approaching and Coghlan

having been removed as mate of the Dynasty, Andreassen

offered Coghlan the position of mate on the Katie Ann.

(According to the declarations of Andreassen and Vargas,

they first considered Coghlan for the master position, but

were unable to reach him and got the feeling that he was

avoiding them. Coghlan disputes this.) Coghlan found such

offer objectionable, considering that he had previously served

as master of the Katie Ann and felt that he should be reap-

pointed to that position. Instead, Andreassen appointed Jarl

Hogseth as master. Coghlan declined the offer of the mate

position and brought this lawsuit in the Western District of

Washington.

Coghlan alleged national-origin discrimination under Title

VII and the Washington Law Against Discrimination.3 ASC

moved for summary judgment supported by declarations and

3

He also alleged impermissible retaliation and wrongful discharge in

violation of public policy, but does not pursue those claims on appeal.

7942 COGHLAN v. AMERICAN SEAFOODS CO.

depositions, arguing that the adverse employment actions

regarding Coghlan were motivated by legitimate, nondiscrim-

inatory reasons, namely, the poor performance of the Dynasty

in 2001 and observed problems in Coghlan’s employment his-

tory. The district court granted ASC’s motion, and this appeal

timely followed.

II

We analyze Coghlan’s disparate-treatment claim of

employment discrimination under the burden-shifting frame-

work outlined by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).4 Under that framework,

the burden of production first falls on the plaintiff to make out

a prima facie case of discrimination. He may do so by show-

ing that (1) he belongs to a protected class, (2) he was quali-

fied for the position he held (or for the position to which he

wished to be promoted), (3) he was terminated or demoted

from (or denied a promotion to) that position, and (4) the job

went to someone outside the protected class. St. Mary’s

Honor Center v. Hicks, 509 U.S. 502, 506 (1993); McGinest

v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004). The

burden of production then shifts to the employer, who must

present evidence sufficient to permit the factfinder to con-

clude that the employer had a legitimate, nondiscriminatory

reason for the adverse employment action. St. Mary’s Honor

Center, 509 U.S. at 506-07. Finally, if the employer meets

that burden, then the McDonnell Douglas framework drops

out of the picture entirely, and the plaintiff bears the full bur-

den of persuading the factfinder that the employer intention-

ally discriminated against him. Id. at 507-08.

We proceed to apply the McDonnell Douglas framework to

the evidence in this case.

4

Washington’s employment discrimination law largely parallels federal

law under Title VII, and our treatment of Coghlan’s Title VII claim thus

applies also to his similar claim under Washington law. See Hernandez v.

Spacelabs Medical Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).

COGHLAN v. AMERICAN SEAFOODS CO. 7943

A

[1] ASC argues—though only in a footnote—that Coghlan

failed to make out a prima facie case of discrimination. ASC

admits that Coghlan belonged to a protected class (non-

Norwegian-born workers); that he was twice not appointed as

relief master of the Dynasty, that he was removed as mate of

the Dynasty, and that he was not appointed master of the

Katie Ann; and that the people chosen instead were

Norwegian-born and thus outside the protected class. It

argues, however, that he was not qualified for those positions

because he was not performing at a level consistent with

ASC’s expectations. This argument is not convincing.5 We

have emphasized that “[t]he requisite degree of proof neces-

sary to establish a prima facie case for Title VII and ADEA

claims on summary judgment is minimal and does not even

need to rise to the level of a preponderance of the evidence.”

Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994);

see also Aragon v. Republic Silver State Disposal, Inc., 292

F.3d 654, 659-60 (9th Cir. 2002) (emphasizing the low thresh-

old for a prima facie case and holding that even an employ-

ee’s self-assessment is relevant evidence). Coghlan has

presented enough evidence to meet this minimal burden: most

notably, he had previously served as master of two of ASC’s

vessels, the Victoria Ann and the Katie Ann, and was offered

the important position of mate on the Dynasty, suggesting that

he was not incompetent to handle major duties on a relatively

large ship.

[2] As for the second step of the McDonnell Douglas

framework, Coghlan does not dispute that ASC’s articulation

of nondiscriminatory reasons for its actions was sufficient to

cause the framework to drop away and to place the burden

5

Moreover, it appears that ASC waived this argument by not presenting

it to the district court. See Harris v. Pulley, 885 F.2d 1354, 1367 (9th Cir.

1988). We need not rest on its waiver, however, because we reject the

argument even on its merits.

7944 COGHLAN v. AMERICAN SEAFOODS CO.

back on Coghlan to show that ASC’s explanations were actu-

ally a pretext for discrimination.

A plaintiff may meet the burden to show pretext using

either direct or circumstantial evidence. Direct evidence is

evidence “which, if believed, proves the fact [of discrimina-

tory animus] without inference or presumption.” Godwin v.

Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)

(quoting Davis v. Chevron, U.S.A., Inc., 14 F.3d 1082, 1085

(5th Cir. 1994)) (alteration in original). Direct evidence typi-

cally consists of clearly sexist, racist, or similarly discrimina-

tory statements or actions by the employer. See, e.g., Godwin,

150 F.3d at 1221 (supervisor stated he “did not want to deal

with [a] female”); Cordova v. State Farm Ins., 124 F.3d 1145,

1149 (9th Cir. 1997).6

Circumstantial evidence, in contrast, is evidence that

requires an additional inferential step to demonstrate discrimi-

nation. It can take two forms. First, the plaintiff can make an

affirmative case that the employer is biased. For example, sta-

tistical evidence is circumstantial evidence that could, if suffi-

ciently probative, point to bias. See Aragon, 292 F.3d at 663.

Second, the plaintiff can make his case negatively, by show-

ing that the employer’s proffered explanation for the adverse

action is “unworthy of credence.” Texas Dep’t of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981). As the Supreme

Court has explained:

6

When the evidence in question is of an employer’s statements that do

not directly concern the plaintiff, it is true that some inference is necessary

to establish discrimination with regard to the plaintiff. Indeed, strictly

speaking, little other than an employer’s own admission could establish

discriminatory intent without any inference whatsoever. Nevertheless,

when evidence establishes the employer’s animus toward the class to

which the plaintiff belongs, the inference to the fact of discrimination

against the plaintiff is sufficiently small that we have treated the evidence

as direct. See Cordova, 124 F.3d at 1149 (deeming “direct” evidence that

the employer had referred to an employee other than the plaintiff as a

“dumb Mexican”).

COGHLAN v. AMERICAN SEAFOODS CO. 7945

Proof that the defendant’s explanation is unworthy

of credence is simply one form of circumstantial evi-

dence that is probative of intentional discrimination,

and it may be quite persuasive.

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,

147 (2000).

The distinction between direct and circumstantial evidence

is crucial, because it controls the amount of evidence that the

plaintiff must present in order to defeat the employer’s motion

for summary judgment.7 Because direct evidence is so proba-

tive, the plaintiff need offer “very little” direct evidence to

raise a genuine issue of material fact. Godwin, 150 F.3d at

1221. But when the plaintiff relies on circumstantial evidence,

that evidence must be “specific and substantial” to defeat the

employer’s motion for summary judgment.8 Id. at 1222 (inter-

nal quotation marks removed); see also Aragon, 292 F.3d at

661.

7

We have recently suggested that “specific and substantial” evidence

may be required even when direct evidence is at issue. See Stegall v. Cita-

del Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2003). We need not

decide today whether that is so, because as we will explain, Coghlan pre-

sents no evidence that qualifies as “direct” under the relevant definition.

8

Unfortunately, some confusion may arise because the terms “direct”

and “indirect” have occasionally been used, even by the Supreme Court,

to distinguish the two varieties of circumstantial evidence—that is, evi-

dence affirmatively establishing bias, and evidence negatively discrediting

the employer’s stated rationale. See, e.g., Burdine, 450 U.S. at 256; Snead

v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093-94 (9th Cir. 2001)

(quoting Burdine). Coghlan thus suggests that evidence such as ASC’s

choice to pass over Coghlan in favor of an allegedly less-qualified Norwe-

gian qualifies as “direct.” We made clear in Godwin, however, that for

purposes of determining the level of evidence necessary to survive a sum-

mary judgment motion, “direct” evidence refers only to evidence (such as

racist or sexist statements) that proves the fact of discriminatory animus

without the need for substantial inference. See Godwin, 150 F.3d at 1221;

Stegall, 350 F.3d at 1066.

7946 COGHLAN v. AMERICAN SEAFOODS CO.

Coghlan does not offer any direct evidence of ASC’s dis-

criminatory intent. Because his case is entirely circumstantial,

he would have to present “specific and substantial” evidence

of intentional discrimination to defeat ASC’s motion for sum-

mary judgment. See Aragon, 292 F.3d at 661. His burden is

especially steep in this case because of the so-called “same

actor inference,” to which we now turn.

B

[3] In Bradley v. Harcourt, Brace & Co., 104 F.3d 267 (9th

Cir. 1996), we held that “where the same actor is responsible

for both the hiring and the firing of a discrimination plaintiff,

and both actions occur within a short period of time, a strong

inference arises that there was no discriminatory action.” Id.

at 270-71. That holding is relevant here because Inge

Andreassen, the man who made all of the challenged employ-

ment decisions, was the same man who appointed Coghlan as

master of the Katie Ann in 1998 (over at least one viable can-

didate of Norwegian descent, according to Andreassen’s dec-

laration). He was also the same man who selected Coghlan for

the position of mate/fishmate on the Dynasty in 2000, an

appointment that Coghlan desired and viewed as a change for

the better.

[4] We based our holding in Bradley on the principle that

an employer’s initial willingness to hire the employee-

plaintiff is strong evidence that the employer is not biased

against the protected class to which the employee belongs. Id.

Thus, although we phrased the same-actor rule in Bradley in

terms of “hiring and . . . firing,” its logic applies no less to

cases such as this one, in which the plaintiff was not actually

fired but merely offered a less desirable job assignment.9 See

9

Cases not involving hiring and firing could arise, no doubt, in which

the same-actor inference would be inappropriate. For example, if a plain-

tiff were alleging that his employer systematically excluded members of

a certain class from upper-management positions, then the mere fact that

COGHLAN v. AMERICAN SEAFOODS CO. 7947

Hartsel v. Keys, 87 F.3d 795, 804 n.9 (6th Cir. 1996) (apply-

ing the same-actor inference where the decisionmaker had not

hired the plaintiff but had previously promoted her).

Coghlan offers several reasons why the same-actor infer-

ence should not apply, but none is convincing.10 First, he sug-

gests that application of the same-actor inference in the

summary judgment context is inconsistent with the holding of

the Supreme Court in Reeves.11 The Supreme Court held in

that case that “a plaintiff’s prima facie case, combined with

sufficient evidence to find that the employer’s asserted justifi-

cation is false, may permit the trier of fact to conclude that the

employer unlawfully discriminated.” Reeves, 530 U.S. at 148.

In other words: in many cases where the evidence is sufficient

for a rational trier of fact to conclude that the employer is

lying about its reason for firing or demoting the plaintiff,

summary judgment will be inappropriate on that basis alone

the employer was willing to hire members of that class for lower-level

positions would surely not prove otherwise. This is not such a case,

though, because the relevant decisionmaker, Andreassen, had not merely

hired Coghlan but had appointed him to advanced positions: master of the

Katie Ann and mate/fishmate of the Dynasty.

10

Coghlan argues that the district court mistakenly applied the same-

actor inference as a “mandatory presumption overriding all other evidence

in the case.” The district court, however, was clearly aware that the same-

actor inference was not “mandatory,” since it wrote that “Coghlan fails to

rebut the presumption,” whereas a mandatory presumption is by definition

irrebuttable. It is true that the district court used the term “presumption”

rather than the term “inference” that appears in Bradley, and in some con-

texts, the two terms can have different meanings. It is clear, though, that

we did not use the term “inference” in Bradley in its technical sense. The

point, as Bradley makes clear and as the district court understood, is sim-

ply that when the allegedly discriminatory actor is someone who has pre-

viously selected the plaintiff for favorable treatment, that is very strong

evidence that the actor holds no discriminatory animus, and the plaintiff

must present correspondingly stronger evidence of bias in order to prevail.

11

Though Coghlan does not say so, this is necessarily an argument that

Bradley is no longer good law, because Bradley itself dealt with the sum-

mary judgment context.

7948 COGHLAN v. AMERICAN SEAFOODS CO.

because a jury could reasonably view the employer’s lie as

evidence of its guilt.12 That holding has no bearing on the

same-actor inference, however, because the point of the same-

actor inference is that the evidence rarely is “sufficient . . . to

find that the employer’s asserted justification is false” when

the actor who allegedly discriminated against the plaintiff had

previously shown a willingness to treat the plaintiff favorably.

Reeves, then, tells us only that if a plaintiff can muster the

extraordinarily strong showing of discrimination necessary to

defeat the same-actor inference, then the case likely must go

to the jury.

Coghlan also argues that the same-actor inference is not

relevant here because three years elapsed between 1998, when

Andreassen appointed Coghlan master of the Katie Ann, and

2001, when the earliest of the allegedly discriminatory deci-

sions occurred. Bradley did limit its holding to cases where

the alleged discrimination took place “within a short period of

time” after the favorable action. Bradley, 104 F.3d at 270-71.

We reject Coghlan’s argument, however, for several reasons.

First, this length of time would be significant only had Cogh-

lan proffered evidence suggesting that Andreassen developed

a bias against Norwegians during that period; but he did not.

Cf. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1286 (9th

Cir. 2000) (taking the same-actor inference into account when

the positive action occurred more than a year earlier than the

negative action); Schnabel v. Abramson, 232 F.3d 83, 91 (2d

Cir. 2000) (basing affirmance of summary judgment in an

employment discrimination case in part on the fact that the

plaintiff “was fired by the same man who had hired him three

years earlier”).

12

The Supreme Court needed to make this explicit in Reeves because

some lower courts had effectively held that summary judgment was

always appropriate unless the plaintiff presented not only a prima facie

case and evidence sufficient to show that the employer’s proffered legiti-

mate rationale was pretextual, but also additional evidence sufficient to

show actual discrimination. See Reeves, 530 U.S. at 146-47.

COGHLAN v. AMERICAN SEAFOODS CO. 7949

Moreover, Andreassen did in fact take favorable action

toward Coghlan in 2000, only a year before the earliest

adverse employment decision, when he appointed Coghlan

mate rather than master of the Dynasty. It is undisputed that

Coghlan himself viewed the appointment as a favorable

employment action; the new job was on a much larger ship

and paid significantly more than the old job, and Coghlan was

pleased with the change. As Coghlan points out, however,

Andreassen declined to characterize the move as a “promo-

tion”; he preferred to call it a “transfer,” and in a literal sense,

it was not a promotion because Coghlan went from the rank

of master on the Katie Ann to the lower rank of mate on the

Dynasty. Coghlan argues that it is the decisionmaker’s per-

ception, not that of the employee, that controls whether the

same-actor inference arises.

[5] As an abstract proposition, this is doubtless true; for if

the decisionmaker did not perceive an employment action as

favorable, there would be no basis to assume an absence of

bias toward the employee. But the fact that we must look to

the decisionmaker’s perception does not mean that we are

bound by the decisionmaker’s label. The question is simply

whether the nature of the employment action, viewed from the

employer’s perspective, is such that it would have been

unlikely if the decisionmaker were truly biased against the

employee’s class. If it is, then the inference fairly arises. In

this case, whether or not Coghlan’s appointment was classi-

fied as a “promotion” in ASC’s internal discussion, it is clear

that Andreassen intentionally chose to appoint Coghlan to a

new, better-paid, more demanding position on a larger ship.

The favorable nature of the reassignment satisfies us that the

same-actor inference should arise.

Finally, Coghlan suggests that the same-actor inference is

just one more factor for the jury to consider in making its

decision and should not be used to grant summary judgment

to the defendant. That is the law in some circuits, and Cogh-

lan cites cases to prove it. See, e.g., Williams v. Vitro Servs.

7950 COGHLAN v. AMERICAN SEAFOODS CO.

Corp., 144 F.3d 1438, 1443 (11th Cir. 1998) (“[I]t is the prov-

ince of the jury rather than the court . . . to determine whether

the inference generated by ‘same actor’ evidence is strong

enough to outweigh a plaintiff’s evidence of pretext.”). But it

is clearly not the law in this circuit, since Bradley itself used

the same-actor inference to affirm a grant of summary judg-

ment, taking the case away from a jury. See Bradley, 104 F.3d

at 272; cf. Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th

Cir. 1996) (affirming grant of summary judgment on the basis

of the same-actor inference); Lowe v. J.B. Hunt Transp., Inc.,

963 F.2d 173, 173-74 (8th Cir. 1992) (affirming grant of

directed verdict on the basis of the same-actor inference).

The same-actor inference is neither a mandatory presump-

tion (on the one hand) nor a mere possible conclusion for the

jury to draw (on the other). Rather, it is a “strong inference”

that a court must take into account on a summary judgment

motion. Bradley, 104 F.3d at 271. We must consider, then,

whether Coghlan has made out the strong case of bias neces-

sary to overcome this inference. It will be useful to consider

separately each of the incidents that Coghlan alleges consti-

tuted illegal discrimination.13

13

We may deal at the outset with one of Coghlan’s contentions. Among

the reasons the district court gave for granting summary judgment was the

fact that “Andreassen is a naturalized U.S. citizen who has renounced his

Norwegian citizenship.” Coghlan argues that the district court thus “erred

in holding that a decision-maker’s citizenship controls whether he discrim-

inated against persons with the same citizenship.” Coghlan, however, dras-

tically overstates the reliance placed on Andreassen’s citizenship by the

district court. It did not hold that the decisionmaker’s adopted citizenship

“controls” the question of discrimination; it merely found citizenship to be

one relevant piece of evidence. We need not decide whether it was wrong

to do so, because no inference from Andreassen’s citizenship is necessary

to conclude that Coghlan has not met his burden of proof.

COGHLAN v. AMERICAN SEAFOODS CO. 7951

C

1

[6] In 2001, while Coghlan was serving as mate on the

Dynasty, the ship’s master (Petursson) had to be temporarily

absent on two occasions. Each time, Andreassen appointed a

Norwegian (Hogseth) as the relief master (that is, the tempo-

rary replacement for the absent master) instead of Coghlan.

Coghlan argues that he was more qualified than Hogseth

because he had more experience both with the Dynasty and as

a factory-trawler master in general. Of course, the quality of

Andreassen’s business judgment is only relevant insofar as it

suggests that his decisions were explainable only as the prod-

uct of illegal discrimination. See Villiarimo v. Aloha Island

Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002). But in this case

there is another, much more plausible, reason for

Andreassen’s decision: Andreassen stated in his declaration

that his decision to appoint Hogseth as relief master was

based entirely on the recommendation of Frank Vargas, who,

in turn, stated in his declaration that he “strongly recom-

mended Jarl Hogseth to serve as Relief Captain” and disfa-

vored Coghlan because Vargas believed he had poor

leadership skills. Coghlan does not offer any evidence that

Andreassen’s decision was not based on Vargas’s recommen-

dation, and Coghlan testified that he does not believe that

Vargas harbors any sort of national-origin bias against him.

Thus, Coghlan has presented no evidence that would cast

doubt on this legitimate explanation of the decision to appoint

Hogseth as relief master, and so he cannot rebut the “strong

inference” of nondiscrimination that arises under the same-

actor rule.

2

[7] In November 2001, Andreassen removed Coghlan as

mate of Dynasty. At the same time, he demoted Petursson to

the mate position and appointed a Norwegian-born person

7952 COGHLAN v. AMERICAN SEAFOODS CO.

(Knotten) as master. Coghlan argues that this is further evi-

dence of pro-Norwegian bias. It is virtually impossible to

credit Coghlan’s argument, however, because Andreassen

first offered the newly vacant master position to an American

of non-Norwegian heritage (Kraljevich). Coghlan argues that

this fact is no more than evidence against him to be evaluated

by the jury at trial. But we cannot see how any reasonable

jury could conclude that Andreassen was motivated by pro-

Norwegian or anti-American discrimination when his first

choice was to replace a Scandinavian master with an Ameri-

can one.14 The directive to change the leadership of the

Dynasty came originally from Michael Hyde, an American.

And Andreassen made his decision in consultation with Var-

gas, an American-born American citizen who Coghlan admit-

ted is not biased in favor of Norwegians.

[8] Moreover, the record suggests that ASC had legitimate

reasons for demoting Coghlan. Andreassen and Vargas

viewed the Dynasty as a poor performer, and its repair costs

were much higher in proportion to the total tonnage caught

than on the other vessels.15 Indeed, Coghlan himself agreed

that the vessel’s performance was poor and that some sort of

change was needed, though of course he did not think that his

own demotion was the right solution.

[9] As further evidence of ASC’s discriminatory intent,

Coghlan points to the fact that Andreassen simultaneously

removed American masters on two other ships and replaced

them with Norwegian-born masters. For two reasons, we find

14

The fact that Coghlan’s demotion occurred as part of a more general

rearrangement in which his superior was also demoted makes his claim of

intentional bias even more difficult to credit.

15

Coghlan argues that several ships had higher repair costs in absolute

terms. As ASC points out, however, it stands to reason that larger and

more complex ships will have higher repair costs than smaller, simpler

vessels. What is most relevant is the level of repair costs in proportion to

the amount of fish caught, and in those terms the Dynasty was easily the

most costly vessel.

COGHLAN v. AMERICAN SEAFOODS CO. 7953

this evidence insufficient to rebut the same-actor inference.

First, this “pattern” is hardly a pattern at all once one consid-

ers the fact that the master position on the Dynasty was first

offered to an American. Second, even a pattern of three

replacements is, under our precedent, too small a sample to

constitute meaningful statistical evidence. See Aragon, 292

F.3d at 663-64 (holding that “the fact that three of the four

casuals singled out for lay off that night were white” was not

deserving of “much weight” because of the small sample

size); Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072,

1076 (9th Cir. 1986) (holding that “statistical evidence

derived from an extremely small universe . . . has little predic-

tive value and must be disregarded” (internal quotation marks

omitted)); Shutt v. Sandoz Crop Prot. Corp., 944 F.2d 1431,

1433 (9th Cir. 1991); see also LeBlanc v. Great Am. Ins. Co.,

6 F.3d 836, 848-49 (1st Cir. 1993) (holding that “a small sta-

tistical sample carries little or no probative force to show dis-

crimination” and noting that statistical evidence is generally

less relevant in disparate treatment cases than in disparate

impact cases because the focus is on the treatment of an indi-

vidual rather than on an overall pattern); Aragon, 292 F.3d at

663 n.6 (approvingly citing LeBlanc for that point). We con-

clude that Coghlan has not presented sufficient evidence to

rebut the same-actor inference with regard to his removal as

mate of the Dynasty.

3

The final incident that Coghlan claims is discriminatory

occurred in 2002, when Andreassen offered Coghlan the posi-

tion of mate on the Katie Ann. Coghlan had previously been

master on that ship, and he claims that Andreassen’s decision

to appoint the Norwegian-born Hogseth as master was based

on Andreassen’s pro-Norwegian bias.

[10] It is questionable whether this should even be consid-

ered a separate act of discrimination from Coghlan’s removal

as mate of the Dynasty: upon that removal, instead of simply

7954 COGHLAN v. AMERICAN SEAFOODS CO.

firing him outright, ASC appointed him as mate of the Katie

Ann. In any case, however, all the legitimate reasons for

removing Coghlan as mate of the Dynasty also apply to not

making him master of the Katie Ann. Again, Coghlan has not

presented evidence sufficient to meet the burden imposed by

the same-actor inference.16

III

[11] Employment discrimination cases inevitably present

difficult problems of proof, precisely because we cannot peer

into the minds of decisionmakers to determine their true moti-

vations. All we can do is apply the evidentiary framework

developed in the decisions of the Supreme Court and our own

court. In this case, Coghlan has not presented evidence suffi-

cient to defeat the same-actor inference with regard to any of

the decisions he challenges. The district court was therefore

correct to grant summary judgment in favor of ASC.

AFFIRMED.

16

Coghlan also points us to the testimony of Brooks Stevens, an

American-born employee of ASC, who stated that he believes ASC gives

preferential treatment to Norwegians. Stevens based his belief on the fact

that he makes approximately the same salary as Lars Oterhals, a Norwe-

gian employee, even though Oterhals is only a fishmate whereas Stevens

is simultaneously both a mate and a fishmate. Upon further questioning,

however, he admitted that he was unsure that the salaries were due to

Oterhals’s Norwegian origin. Michael Hyde testified that Brooks Stevens

had stated to him that “he wasn’t sure the Norwegians as a whole, but cer-

tainly certain Norwegians he thought in the past had received special treat-

ment.” Hyde also explained that the salary issue that concerned Stevens

was the result of ASC’s policy that “there are some boats where you have

a person serving as both master and fishmaster . . . and yet if you serve

two functions, you don’t get paid significantly more than if you were only

serving one function.” Coghlan presents no evidence to suggest that

Hyde’s description of ASC’s salary policy was inaccurate. His evidence,

then, reduces to Stevens’s mere theory, unsubstantiated by any factual

support whatsoever in the record, that his pay may have been related to

his American origin. This speculation adds little to Coghlan’s case.