The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLAUDE BROWN, No. 18-35168
Plaintiff-Appellant, D.C. No. 2:16-cv-01340-TSZ
v.
MEMORANDUM*
KING COUNTY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted November 7, 2019
Seattle, Washington
Before: GOULD and NGUYEN, Circuit Judges, and PRESNELL,** District
Judge.
Plaintiff-Appellant Claude Brown (“Brown”) appeals the district court’s
grant of summary judgment dismissing his racial discrimination and retaliation
claims under 42 U.S.C. § 1981 and the Washington Law Against Discrimination
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.
(“WLAD”). Brown, who is Black, alleges his employer, Defendant-Appellee King
County, discriminated against him on the basis of his race and retaliated against
him for filing discrimination and retaliation complaints with King County’s Office
of Civil Rights.1 We deferred submission of the case pending the Supreme Court’s
decision in Comcast Corp. v. National Association of African American-Owned
Media, 140 S. Ct. 1009 (2020). We now review de novo the district court’s grant
of summary judgment. Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). We
have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand the
discrimination and retaliation claims for further proceedings.
1. Brown claims King County discriminated against him on the basis of
his race by rejecting his applications for the Rail-Supervisor-in-Training (“RSIT”)
position in the 2012 and 2014 promotion cycles and by removing him from the
Acting Technical Trainer (“ATT”) position.2 Because Brown aims to show
discrimination through indirect proof, the McDonnell Douglas burden-shifting
framework applies. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–
04 (1973).
To survive summary judgment, Brown must establish a prima facie case of
1
Because the parties are familiar with the facts and procedural history of the case,
we recite only those facts necessary to decide this appeal.
2
Although Brown alleged other instances of discrimination in his complaint, on
appeal he limits his discrimination claims to King County’s denial of his RSIT
promotions and his removal from the ATT position.
2
racial discrimination by showing: “(1) [he] belongs to a protected class, (2) he was
performing according to his employer’s legitimate expectations, (3) he suffered an
adverse employment action, and (4) similarly situated employees were treated
more favorably, or other circumstances surrounding the adverse employment
action give rise to an inference of discrimination.” Reynaga v. Roseburg Forest
Prods., 847 F.3d 678, 691 (9th Cir. 2017). For Brown’s § 1981 discrimination
claim, he must also show “that, but for race, [he] would not have suffered the loss
of a legally protected right.” Comcast, 140 S. Ct. at 1019. And for his WLAD
discrimination claim, he must show that his race was a “substantial factor” in the
adverse employment action. Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas Cty.,
404 P.3d 464, 471 (Wash. 2017).
We require “very little evidence to survive summary judgment in a
discrimination case, because the ultimate question is one that can only be resolved
through a searching inquiry—one that is most appropriately conducted by the
factfinder, upon a full record.” Reynaga, 847 F.3d at 691 (quotation omitted); see
also Mikkelsen, 404 P.3d at 473.
Brown has shown that he is a member of a protected class, that he applied
and was qualified for the RSIT position and the ATT position, that he was rejected
from the RSIT position repeatedly, and that he was prematurely removed from the
ATT position despite performing his work satisfactorily. Brown has further
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alleged: the former president of his union told him that King County would never
hire a Supervisor “with braids”; Brown and several other minority employees
“were informed that [they] were not qualified to test for the [2011 RSIT] position”;
Brown was informed that he was “not qualified to be trained” for the 2012 RSIT
position despite finishing fourth in the testing behind the top three candidates who
were selected for the program; and Brown’s 2014 RSIT application was denied on
the ground that it was incomplete, even though he had previously submitted the
same application and it had never been denied on that basis before. Several other
minority rail operators submitted declarations that King County’s hiring system
was improperly rigged on the basis of race.
Brown has met the minimal burden required to state a prima facie case of
discrimination under federal and state law by showing that the circumstances
surrounding King County’s rejection of his RSIT promotion applications and
removal from the ATT position give rise to an inference of discrimination.
Accordingly, we REVERSE and REMAND the discrimination claims. Because
Brown has demonstrated a prima facie case, the burden shifts to King County to
provide a legitimate, non-discriminatory reason for the adverse employment
actions.
2. Brown also claims King County retaliated against him for filing
discrimination and retaliation complaints with King County’s Office of Civil
4
Rights. To establish a prima facie case of retaliation under § 1981 and the WLAD,
Brown must demonstrate that “[]he engaged in protected activity, that []he suffered
a materially adverse action, and that there was a causal relationship between the
two.” Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 422 (9th
Cir. 2013). For Brown’s § 1981 retaliation claim, he must show that the protected
activity was a “but-for” cause of the materially adverse action, id., and for his
WLAD retaliation claim, he must show that the protected activity was a
“substantial factor” in the adverse action, Allison v. Hous. Auth., 821 P.2d 34, 37
(Wash. 1991) (en banc).
Brown engaged in protected activity when he filed his discrimination and
retaliation complaints with King County. Brown has shown that, after he filed the
discrimination complaint in March 2013, King County selected him for the ATT
position in late June 2013 and then removed him from the position in early July
2013.3 One of the two people who decided to remove Brown from the position
knew at the relevant time that Brown “had raised issues of discrimination in the
past,” though she was “not sure” whether she knew Brown had filed a
discrimination complaint. Brown has further shown that, one year after he filed the
discrimination complaint and four months after he filed the retaliation complaint,
3
Brown also alleges that King County retaliated against him for filing the
discrimination complaint by suspending him for a train infraction, but we AFFIRM
the district court’s grant of summary judgment as to that claim.
5
King County disqualified his application for the 2014 RSIT promotion as
“incomplete,” even though he had submitted the same application in prior years
without any problems. There is a triable issue as to whether the person who
rejected Brown’s application knew about his discrimination complaint at the
relevant time.
Brown has stated a prima facie case of retaliation under federal and state law
by showing facts that support a plausible inference that his protected activity was a
but-for cause of his removal from the ATT position and the disqualification of his
2014 RSIT application. The temporal proximity between Brown’s protected
activity and these adverse actions, coupled with the decisionmakers’ knowledge of
that activity, is sufficient to satisfy Brown’s burden at the first step of the
McDonnell Douglas framework. Accordingly, we REVERSE and REMAND
Brown’s retaliation claims for further proceedings.
AFFIRMED IN PART AND REVERSED AND REMANDED IN
PART.
6