“The 5 Ninth Circuit has recognized that only ‘nontrivial’ employment actions, such as ‘termination, 6 dissemination of a negative employment reference, issuance of an undeserved negative 7 performance review and refusal to consider for promotion’ qualify as adverse employment 8 actions.”
How later courts described this case
- “The 5 Ninth Circuit has recognized that only ‘nontrivial’ employment actions, such as ‘termination, 6 dissemination of a negative employment reference, issuance of an undeserved negative 7 performance review and refusal to consider for promotion’ qualify as adverse employment 8 actions.”
Written by the judges who cited it.
The opinion
FILED
NOT FOR PUBLICATION JUN 22 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CARL KNIGHT, No. 11-35592
Plaintiff - Appellant, D.C. No. 2:10-cv-00753-JLR
v.
MEMORANDUM *
KATHY BROWN; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted June 7, 2012
Seattle, Washington
Before: SILVERMAN and MURGUIA, Circuit Judges, and KOBAYASHI,
District Judge.**
Carl Knight appeals the district court’s order granting summary judgment in
favor of the Defendants on his claims of disparate treatment, hostile work
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Leslie E. Kobayashi, District Judge for the District of
Hawaii, sitting by designation.
environment, retaliation, and unlawful employment practices in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), 42 U.S.C. §§ 1981
and 1983, and the Washington Law Against Discrimination. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
First, Knight failed to establish a prima facie case of disparate treatment
because he could not show that a similarly situated non-African American sergeant
was treated more favorably. Gene Willard and Knight were not similarly situated
“in all material respects.” See Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006).
Willard was the most senior security sergeant, and his seniority allowed him first
pick of assignments and shifts. Because Knight could not make out a prima facie
case of disparate treatment, the district court properly entered summary judgment.
See id. at 756–57.
Second, Knight asserts that Defendants created a hostile work environment.
He points to one racially offensive comment made by Willard when Knight was
promoted to sergeant over Caucasian security officers. The comment was an
isolated incident, made outside of Knight’s presence. Under our case law, the
evidence provided by Knight is neither severe nor pervasive enough to alter the
conditions of his employment and create an abusive work environment. See
Manatt v. Bank of Am., NA, 339 F.3d 792, 799 (9th Cir. 2003).
2
Third, Knight argues that the district court erred in granting summary
judgment on his retaliation claims. We disagree. Defendants proffered a
legitimate, nondiscriminatory reason for Knight’s demotion and suspension: he
violated King County’s Code of Ethics and the Facilities Management Division’s
Security Policy and Procedures when he requested non-public criminal information
for a private bond company, asked for a fingerprint comparison for that same
private company, and sought to have a fugitive’s warrant changed. Because
Defendants had a nondiscriminatory reason for the adverse employment actions,
Knight bore the burden to prove that the reason was pretextual through specific and
substantial evidence. See Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270
(9th Cir. 1996). He failed to carry his burden; his reliance on temporal proximity
and unsubstantiated, subjective statements cannot prevent summary judgment. See
Brown v. City of Tucson, 336 F.3d 1181, 1187–88 (9th Cir. 2003).
Lastly, we affirm the district court’s grant of summary judgment with
respect to Knight’s § 1983 claims against the County. Knight failed to prove
that Kathy Brown, the director of the Facilities Management Division, was a final
policymaking official, that the County maintained an unconstitutional policy or
custom, or that there was any other basis to impose municipal liability on the
3
County. See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690–94 (1978);
Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992).
AFFIRMED.
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