Petition for Writ of Certiorari — William Maner, Petitioner v. Dignity Health, fka Catholic Healthcare West

Supreme Court briefNov 12, 2021

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In The

Supreme Court of the United States

William L. Maner,

Petitioner,

vs.

Dignity Health (f.k.a. Catholic Healthcare West),

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals for the

Ninth Circuit

APPENDIX

William L. Maner

PO Box 781

Galveston, Texas 77553

Phone: 409-965-7657

E-Mail: WilliamManer@Hotmail.com

XI. APPENDIX

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

> Order for Summary Judgement of the United

States District Court of Arizona (October 10th,

Page A2

2018)

> Opinion of the United States Court of Appeals

for the Ninth Circuit (August 20th, 2020)

Page A25

OTHER DOCUMENTS

> Plaintffs Response to Defendant’s Motion for

Page A62

Summary Judgement

> Dignity Health (f.k.a. Catholic Healthcare West)

Administrative Policy and Procedure

Page A86

(Separation 120.5.002)

> Evidence Document from the Record Petitioner Working on Behalf of Employer

Beyond October 1, 2011 - A

Page A93

> Evidence Document from the Record —

Petitioner Working on Behalf of Employer

Beyond October 1, 2011 - B

Page A105

> Policy Guidance on Employer Liability under

Title VII for Sexual Favoritism (N-915.048)

Page Alll

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF ARIZONA

No. CV16-3651-PHX DGC

William Maner,

Plaintiff,

Dignity Health, f/k/a Catholic Healthcare

West,

Defendant

ORDER

Plaintiff William Maner filed a complaint against

Defendant Dignity Health for discrimination and

retaliation in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000 et seq. Docs. 1, 30.

Dignity Health moves for summary judgment on all

claims. Doc. 80. The parties also jointly move to file

documents under seal. Doc. 84. The motions are fully

briefed, and no party requests oral argument. Docs. 8083, 86, 87. For the reasons that follow, the Court will

grant both motions.

I. Background.

The following facts are undisputed unless

otherwise noted.1*10**! 1 From 1999 until 2008,

Maner worked for Dr. Robert Garfield at the

University of Texas Medical Branch in Galveston,

Texas. Doc. 83*1 at 52*53. In 2008, Garfield moved

his research to Dignity Health in Phoenix, Arizona,

and invited Maner to join his team there. Doc. 83*

1...

[Note] 1 Citations are to page numbers

attached to the top of pages by the Court’s

ECF system, not to original numbers on the

document pages.

...at 53*54. Maner agreed, and Dignity Health

hired Maner as a Bio Med Design Engineer in its

Research Grants Department, where Garfield

remained Maner’s supervisor. Doc. 83*1 at 53; Doc.

81*1 at 52. Garfield also invited researchers Leili

Shi and Dr. Yuan L. Dong to continue working

Shi and

with him in Phoenix. Doc. 83*1 at 54.

Garfield had been in a romantic relationship for

about 22 years (Doc. 81*2 at 4), and Maner was

aware of their relationship (Doc. 83*1 at 55). Due to

space constraints in Garfield’s Phoenix lab,

Maner worked at Dignity Health’s facility several

miles away with two other researchers. Doc. 83*1 at

59*60, 64. Maner’s job duties included providing

“technical biomedical engineering support... in

the design and applications or equipment,

monitoring research subjects, working with

Garfield on “design and experimental protocols,”

and “[ijnteractOng] with clinical colleagues,

postdoctoral fellows, students and other faculty ”

Doc. 81-1 at 55. Maner agrees his job duties

included interactions with others, but disputes he

was required to be “at the hospital” for those

interactions and states that he “regularly

interacted with colleagues remotely.” Doc. 83 H 4.

Between July 2Ci08 and July 2009, Garfield rated

Maner’s performance at Dignity Health as

“outstanding” and gave him the highest rank in

every category. Docs. 83-1 at 76-77, 79; 81-1 at 5668. Garfield’s comments included*

“Overall an outstandingperformance. It

would be very difficult to function at our

present level without Mr. Maner. He does an

excellentjob in assisting in all aspects of

our work. He gets along veiy well with

everyone and strives to achieve the highest

levels ofaccomplishments.”

Doc. 81‘1 at 68. Maner received a salary increase

based on Garfield’s July 2009 review (id. at 20, 71),

and a further increase in September 2010 after

another favorable review (id. at 73*78, 80). In

August 2010, a Texas court put Maner on

probation. Doc. 83-1 at 93-94. Maner learned he

would need to serve his probation in Texas unless

he received permission to work outside the state.

Id. at 95-96. Maner asked Garfield if he could

work remotely in Texas. Docs. 83*1 at 92; 81-1 at

82. Garfield agreed, saying: "I will help you any

way I can. We will work this out even if you have to

stay in Galveston for some time ” Docs. 83-1 at 96;

81*1 at 82. Maner admits he was an at-will

employee at Dignity Health and that Garfield

could have terminated him rather than permit

remote work. Doc. 83-1 at 97. But Maner disputes

that “working physically (as opposed to remotely) in

Garfield’s lab was a condition of his employment.”

Docs. 83 25; 83-1 at 96-97. Maner could have

sought permission from the Texas probation

department to work in Phoenix and commute to

Texas to report to his probation officer (Doc. 83-1 at

93), but he did not make the request because it was

“absolutely impractical” financially and temporally

(id. at 92,95). Maner began working in Texas in

late 2010. Doc. 83-1 at 128-29.

In August 2011, Garfield gave him an unfavorable

review, stating that he “Needs Improvement” in

almost every review category. Doc. 81-1 at 86-90.

Garfield’s comments included*

"[Maner] has helped occasionally on

analysis of data but it is essential that he

be here to fulfill all our needs and it [is]

obvious that this can not be done

completely when he is in Texas.”

Doc. 81-1 at 86.

“Little in the way of support. . . . Little to

help our goals and studies. . . . Little help

as interface. . . . Has not been here to help

with staff members. He has on occasion

communicated with others on the phone but

he is required to be here to participate.”

Id. at 87.

“Effectively has not [performed as expected

because he is located in Texas and it is hot

always possible to contact him.”

Id. at 88.

Garfield concluded-'

“tilt is not possible [for Maner] to fulfill

the needs of this position from Texas and

under conditions which we have no control.”

...Id. at 90. Garfield recommended that Maner

return to Phoenix immediately or be terminated.

Id. at 90.

Maner contested Garfield’s review in a letter to

Dignity Health which will be referred to in this

order as the “Review Response.” Doc. 81-1 at 84.

Maner listed several projects he worked on in

Texas, asserted that he had frequent and

documented contact with colleagues, and stated

that he was informed on multiple occasions that his

work was successful. Id. As evidence that Garfield

was happy with his work, Maner pointed to an

email shortly before the review in which Garfield

wrote that the lab was running out of funds and

needed to develop a strategy to pay Maner. Doc. 838 at 4; Doc. 83

82-85.

The Review Response asserted that limited

funding, not Maner*s performance, prompted the

“inaccurate” review. Doc. 83-1 at 144. Maner also

wrote a letter to a Dignity Health doctor (the

“Lukas letter”), regarding his arrangement to work

in Texas, his performance, and funding for his

position. Doc. 81-1 at 93. In a letter to Dignity

Health Senior Vice President on October 11, 2011

(“the Vallier letter”), Maner addressed his work

performance and the availability of funds for his

position. Id. at 96.

Dignity Health claims to have terminated Maner

on October 1, 2011. Doc. 81-3 at 5, 11. Maner

disputes this date, arguing that he continued to

work for Dignity Health through November 2011,

expecting compensation. Docs. 83 94*95; 83*1 at

178*79; 83*2 at 28*38. Garfield terminated another

male in his lab - Dr. Dong - in 2010. Doc. 83*1 at

234*37.

II. Summary Judgment Standard.

A party seeking summary judgment “bears the

initial responsibility of informing the district court

of the basis for its motion, and identifying those

portions of [the record] which it believes

demonstrate the absence of a genuine issue of

material fact.” Celotex Coip. v. Catrett, 477 U.S.

317, 323 (1986). Summary judgment is appropriate

if the evidence, viewed in the light most favorable

to the nonmoving party, shows “that there is no

genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). Summary judgment is

also appropriate against a party who “fails to

make a showing sufficient to establish the

existence of an element essential to that party’s

case, and on which that party will bear the

burden of proof at trial.” Celotex, 477 U.S. at 322.

Only disputes over facts that might affect the

outcome of the suit will preclude summary

judgment, and the disputed evidence must be

“such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

HE. Discussion.

Maner alleges two Title VII claims: sex

discrimination and retaliation. Doc. 30.

Dignity Health moves for summary.judgment on

both claims. Doc. 80.

A. Sex Discrimination.

An employer violates Title VII when it subjects an

employee to disparate treatment because of the

employee’s sex. 42 U.S.C. § 2000e 2(a); see

Reynaga v. Roseburg Forest Prods., 847 F.3d 678,

690 (9th Cir. 2017); McDonnell Douglas Corp. v.

Green, 411 U S. 792, 802 (1972). A plaintiff can

establish an inference of discrimination “by

satisfying the prima facie elements from McDonnell

Douglas'- (l) the plaintiff 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, 847 16 F.3d at 690-91.

Once a plaintiff satisfies this prima facie case, “the

burden shifts to the defendant to provide a

legitimate, non-discriminatory reason for the

adverse employment action. If the defendant

meets this burden, then the plaintiff must . . .

raise a triable issue of material fact as to whether

the defendant’s proffered reasons are mere pretext

for unlawful discrimination.” Id. at 690-91 (internal

quotations and citations omitted).

Alternatively, “a plaintiff may simply produce

direct or circumstantial evidence demonstrating

that a discriminatory reason more likely than not

motivated the employer.” Id. (internal quotations

omitted). Dignity Health argues that Maner fails

to complain of sex discrimination under Title VII

because he alleges only that Garfield favored Shi

because of their romantic relationship, not

because of discrimination against males. Doc. 80 at

5. Even if he does allege sex discrimination,

Dignity Health argues that Maner cannot satisfy

the fourth element of his prima facie case — that

similarly situated employees were treated more

favorably. Id. at 8.

1 Manor’s Sex Discrimination Claim.

Maner argues that Dignity Health

mischaracterizes his claim, but Maner’s own

statements repeatedly show that his claim of

disparate treatment is based not on the fact that

he is male, but on Garfield’s favoritism of a

romantic partner. Maner complains that he was

“treated less favorably than Shi because Garfield

preferred his female employee and romantic live-in

partner for the purposes of travelling to

conferences.” Doc. 30 U 34. Maner claims he was

terminated because Garfield “needed to

terminate another male employee in order to free

up the funds to keep his girlfriend employed.”

Doc. 83-1 at 142. Maner asserts^ “She’s a female.

He’s terminating a male to keep her employed. Of

course it’s sex discrimination.” Doc. 83-1 at 146.

And- “If I were a woman that was sleeping with

him, I would have probably got a glowing review in

2011.” Doc. 83-1 at 161. Maner responded similarly

throughout his deposition. See Doc. 83*1 at 163-68.

Maner’s response to the motion for summary

judgment makes the same argument^ Garfield

“unlawfully favored his romantic partner Leili Shi

(female) over the course of several years, and

protected her from termination on two separate

instances,” Doc. 82 at 1-2. Garfield “gave work

preferences to his female partner, Leili Shi, as

compared to the male workers,” and showed

“continued, unwavering, favoritism towards his

female romantic partner.” Id. at 8-9. In short,

Maner’s claim rests on Garfield’s favoritism of Shi

because of their romantic relationship.

2. The “Paramour Theory.”

Maner asserts a Title VII claim that has been

called the “paramour theory.” This name describes

“claims of discrimination where a supervisor’s

preference for a paramour... results in an adverse

employment action against the plaintiff.” Nygren

v. AT & T Wireless Servs., Inc.No. C03-3928JLR,

2005 WL 1152281, at *3 (W.D. Wash. 2005). The

Equal Employment Opportunity Commission

(“EEOC”) has provided guidance on the paramour

theory"Title VII does not prohibit...preferential

treatment based upon consensual romantic

relationships. An isolated instance of

favoritism toward a 'paramour.. may be

unfair, but it does not discriminate against

women or men in violation of Title VII,

since both are disadvantaged for reasons

other than their genders. ”

EEOC Policy Guidance on Employer Liability

Under Title VII for Sexual Favoritism, EEOC

Notice No. N-915-048 (Jan. 12,1990). Courts have

A10

adopted the same view. The Second Circuit’s

decision in DeCintio v. Westchester Cty. Med.

Ctr807 F.2d 304 (2d Cir. 1986), is illustrative.

Seven male respiratory therapists alleged sex

discrimination after a supervisor selected a female

respiratory therapist — his romantic partner — for

promotion. Id. at 305-06. The plaintiffs alleged

that the promotion opportunity had been written

with a particular registration requirement that

only the female could satisfy. Id. at 306. The

Second Circuit concluded, however, that to

expand the meaning of “sex” under Title VII “to

include ‘sexual liaisons’ and ‘sexual attractions’”

would be “wholly unwarranted” because the male

plaintiffs did not suffer disparate treatment due to

their sex. Id. at 306, 308. They were discriminated

against because their supervisor favored his

paramour, “exactly the same predicament as that

faced by any woman applicant for the promotion ”

Id. at 308. At least seven other circuits have also

rejected the paramour theory. See Tenge v. Phillips

Modern Ag Co., 446 F.3d 903, 909-10 (8th Cir.

2006) (sexual favoritism “does not amount to

discrimination on the basis of the employee’s

status as a man or woman” under Title VII); Ackel

v. Natl Comms., Inc., 339 F.3d 376, 382 (5th Cir.

2003) (where “an employer discriminates in favor

of a paramour, such an action is not sex-based

discrimination, as the favoritism, while unfair,

disadvantages both sexes alike for reasons other

than gender”) (citation omitted); Schobert v. HI.

Dept, of Transp., 304 F.3d 725, 732-33 (7th Cir.

2002) (finding that “Title VII does not 0 prevent

employers from favoring employees because of

All

personal relationships” because, “[h]ad there been

other women in the [shop], they would have

suffered in exactly the same way [as the male

plaintiff!, which also shows why this is not really a

sex discrimination problem”); Womack v. Runyon,

147 F.3d 1298, 1300-01 (llth Cir. 1998) (affirming

dismissal of sex discrimination claim based on

favoritism of a paramour for a promotion); Taken v.

Okla. Corp. Comm ’n, 125 F.3d 1366, 1370 (lQth

Cir. 1997) (holding that plaintiffs did not state a

claim for sex discrimination by alleging that

“supervisor preselected his paramour for a,

[benefit] even though she was less qualified than

either [pjlaintiff. . . . because they are based on a

voluntary romantic affiliation, and not on any

gender differences”); Becerra v. Dalton, 94 F.-3d

145, 149-50 (4th Cir. 1996) (no Title VII sex

discrimination when supervisor extended

promotion to plaintiffs coworker in exchange for

sexual favors from coworker), cert denied519

U.S. 1151 (1997); Miller v. Aluminum Co. ofAm.,

679 F. Supp. 495, 501 (W.D. Pa. 1988)

(“[Preferential treatment on the basis of a

consensual romantic relationship between a

supervisor and an employee is not gender-based

discrimination ”), affd mem., 856 F.2d 184 (3d Cir.

1988). The Ninth Circuit has not adopted the

paramour theory as a viable claim under Title

VII. CandeJore v. Clark Cty. Sanitation Dist., 975

F.2d 588, 590 (9th Cir. 1992); id. at 591-92

(Kleinfeld, J., concurring) (“Our decision should not

be read as... establishing any doctrine on whether

discrimination on account of a coworker’s

consensual romantic relationship with a

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supervisor violates Title VII, because we have not

reached the legal issue.”); see also Knadler v.

Furth, 253 Fed. Appx. 661, 664 (9th Cir. 2007)

(“We have not accepted the ‘paramour’ theory of

gender discrimination.”).

District courts in this circuit generally reject the

paramour theory. See Alberto v. Bank of Am., No.

C-94-1283-VRW, 1995 WL 562170 at *5 (N.D. Cal.

Sept. 13, 1995) (rejecting theory and adopting the

reasoning of the Second Circuit in DeCintio)‘> cf.

Nygren v. AT & T Wireless Servs., Inc., No. C033928JLR, 2005 WL 1152281, at *3 (W.D. Wash.

April 21, 2005) (looking to Title VII case law to

interpret Washington anti-discrimination law and

agreeing with circuits that have dismissed the

paramour theory as basis for sex discrimination);

Keenan v. Allan, 889 F. Supp. 1320, 1375 n.66

(E.D. Wa. 1995) (“Preferential treatment on the

basis of a consensual relationship between a

supervisor and an employee does not constitute a

cognizable sex discrimination claim under Title

VII for other employees.”) (citing cases and EEOC

Policy Guidance), a£Fd, 91 F.3d 1275 (9th Cir.

1996). But see, e.g., Olvera v. Sierra Nev. College,

No. 3:08-cv-00355-LRH—VPC, 2010 WL 185950,

at *4 (D. Nev. Jan. 15, 2010) (reading Candelore as

stating a test under the paramour theory); Perron

v. Sec., Dept, ofHealth & Human Servs., No. 2:065 cv-02429-MCE-GGH, 2007 WL 4219171, at *6

(E.D. Cal. Nov. 29, 2007) (same). The Court agrees

with DeCintids, reasoning and the vast majority of

courts. ‘“Sex’ in Title VII should be read to refer

only to discrimination based on gender, not

discrimination based on sexual activity regardless

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of gender.” Alberto, 1995 WL 562170, at *5. “[A]

consensual sexual relationship between a

supervisor and an employee does not give other

employees a Title VII cause of action, because such

a relationship prejudices male and female

employees equally ” Id.

Thus, Maner’s claim of

sex discrimination, based on Garfield’s alleged

favoritism of Shi as a paramour, fails as a matter

of law. The cases cited by Maner are unavailing.

See King v. Palmer; 778 F.2d 878, 880 (D.C. Cir.

1985) (not addressing whether Title VII prohibits

paramour favoritism); id. At 883 (per curiam)

(“Rehearing of the issue en banc would be

inappropriate because no party challenged that

application of Title VH on appeal, and the issue

was not briefed or argued to the panel.”); see also

Broderick v. Ruder, 685 F. Supp. 1269, 1277 (D.C.

Cir. 1988) (citing King for undecided proposition);

Toscano v. Nimmo, 570 F. Supp. 1197,1198 1201

(D. Del. 1983) (discussing court’s factual findings

and not addressing paramour theory); Priest v.

Rotary, 634 F. Supp. 571, 581-82 (N.D. Cal. 1986)

(discussing sexual harassment and hostile work

environment claims).

Maner asserts no basis for sex discrimination aside

from Garfield’s alleged favoritism of Shi. See Doc.

82 at 8*16. Maner’s conclusory assertions about

Garfield’s anti*male prejudice are insufficient to

create a triable issue. See Anderson, 477 U.S. at

249*52. Maner points to no evidence — other than

Garfield’s relationship with Shi - for his claim that

Garfield preferred females to males.

Finally, Maner cites 29 C.F.R. § 1604.11 as support

for his theory (Doc. 82 at 11), but that regulation

A14

pertains to sexual harassment which Maner does

not allege in his complaint. Summary judgment

“is not a procedural second chance to flesh out

inadequate pleadings.” See Wasco Prods., Inc. v.

Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir.

5 2006).

The Court will grant Dignity Health’s summary

judgment motion on Maner’s sex discrimination

claim. See Doc. 80 at 8-11.

B. Retaliation.

Title VII prohibits retaliation against an employee

for opposing an unlawful employment practice or

participating in a Title VII proceeding. 42 U.S.C. §

2000e-3(a). A successful retaliation claim must

establish that (l) the employee engaged in a

protected activity, (2) the employer took an adverse

employment action against the employee, and (3)

the employer would not have taken the adverse

employment action but for a design to retaliate.

Nilsson v. City ofMesa, 503 F.3d 947, 953*54 (9th

Cir. 2007); see Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 570 U.S. 338, 360 (2013) (clarifying that

employee must show “but for” causation). If the

plaintiff establishes a prima facie case of

retaliation, the burden shifts to the defendant to

“articulate a legitimate, non-retaliatory reason for

its actions.” Nilsson, 503 F.3d at 954 (internal

quotations omitted). If the defendant does so, the

plaintiff must show the articulated reason is a

mere pretext. Id. Dignity Health argues Maner

cannot show that he engaged in protected activity.

Doc. 80 at 12.

[Note] 2

A15

[Note] 2- Dignity also argues that Maner

cannot show ‘"but for” causation, but the

Court need not address this issue. Doc. 80 at

12.

1. Protected Activity.

An employee, engages in protected activity for

purposes of Title VII when he opposes conduct

that he reasonably believes to he an unlawful

employment practice, or when he participates m an

EEOC investigation or proceeding. 42 U.S.C. §

2000e-3(a); see Trent v. Valley Elec. Ass’n Inc., 41

F.3d 524, 526 (9th Cir. 1994). Maner does not

claim to have participated in any EEOC

investigation or proceeding, so his claim is based

entirely on his alleged opposition to an unlawful

employment practice. “An employee need not utter

magic words to put his employer on notice that he ,

is complaining about unlawful discrimination.”

Ekweani v. Amehpnse Fin., Inc., No. CV' 08:

01101‘PHX FJM, 2010 WL 481647, at *6 (D. Ariz.

Feb. 8, 2010) (citation omitted). Whether “analyzed

as a requirement for protected activity or under the

element of causal link,... an employer must

reasonably be aware that its employee is engaging

in protected activity.” Id. (citing Cohen v. Fred

Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982));

see also Quinones v. Potter; 661 F. Supp. 2d

1105, 112627 (D. Ariz. 2009) (citing GaldieriAmbrosini v. Natl Realty & Dev. Corp136 F.3d

276, 291-92 (2d Cir. 1998) for the proposition that

“implicit in the requirement that the employer

have been aware of the protected activity is the

A16

requirement that it understood or could

reasonably have understood, that the plaintiffs

opposition was directed at conduct prohibited by

Title VIF).

The first question is whether Maner ever clearly

opposed an unlawful employment practice. Maner

points to the Vallier letter, the Lukas letter, and

the Review Response as his protected activity. Doc.

83 47-48. Maner concedes that the Lukas letter

does not mention Shi, and the parties dispute

whether it concerns allegations of discrimination.

Docs. 81 50; 83 50. The parties also dispute

whether the Vallier letter alleges discrimination.

Docs. 81 51-53; 83 51-53. The Review Response

does not mention discrimination. Maner asserts

that the following passage complains of sex

discrimination because it “necessarily means [Shi]

gets to keep the funds to support her” position and

“impliels] that funding would be used to fund

someone” other than him. Doc. 83*1 at 145*46.

Recent claims from [Dignity Health] of limited

funding available to support William Maner’s

position have now apparently prompted a sudden,

inaccurate, and unfairly negative employee

evaluation on the part of [Dignity Health], possibly

in an effort to remove William from the payroll.

Doc. 83-1 at 144.

The Court will not infer meaning beyond Maner’s

chosen words. Maner’s only stated purpose in the

letter was to “[a]ppealD the unfair Employee

Evaluation, as well as the equally unfair proposal

to terminate William Manerfs] employment,

based either upon work performance or funding

issues, or both.” Doc. 81-1 at 85. The Review

A17

Response addresses the recent unfavorable

performance review and concerns about funding. It

says nothing about sex discrimination. Nor does the

Lukas letter address allegations of discrimination

or unfair treatment.

It concerns only Maner’s performance and funding

for his position. -See Doc. 81*1 at 92* 10 94. The

Vallier letter does contains statements that a jury

might reasonably view as protected activity- (1)

“said funds are now being appropriated in a

nepotistic manner by [Dignity Health]

management that also violates EEOC articles”;

and (2) “Odor [Dignity Health] to proceed with my

termination ... would constitute unfair labor

practices which would violate [Dignity Health]

internal written employment policies, as well as

EEOC articles, and are therefore illegal under

Arizona and California labor law, even for “atwill” employers.”

Doc. 81*1 at 96. Because the

parties dispute the meaning and significance of the

Vallier letter, the Court cannot grant summary

judgment on the ground that Maner never opposed

an unlawful employment practice.

2. Underlying Title VII Claim.

In a separate argument, Dignity Health asserts

Maner cannot establish protected activity because

the conduct Maner complained about - Garfield’s

favoritism of Shi — is not prohibited by Title VII

as sex discrimination. Doc. 80 at 13*14. This

argument requires the Court to review Ninth

Circuit cases, on when an employee’s complaint is

sufficient to support a retaliation claims. In Sias v..

City Demonstration Agency,, 588 F.2d 692 (9th

A18

Cir. 1978), the City of Los Angeles terminated

Sias because he wrote a grievance letter to the

Department of Housing and Urban Development

detailing his concerns about insufficient minority

representation in his city agency. Sias, 588 F.2d at

693*94. The City argued on appeal that Sias could

not assert a retaliation claim because the trial

court made no finding of actual Title VII

discrimination. Id. at 694. The Ninth Circuit

disagreed. It noted that the trial court had in fact

found Sias’s “discharge to have racial implications

because Sias complained of discrimination against

him and other Mexican-Americans in employment

and promotion,” and held that because his

“opposition was based on a reasonable belief’ that

unlawful discrimination had occurred, Sias

engaged in protected activity and could assert a

claim for retaliation. Id. at 695*96. Other Ninth

Circuit cases have confirmed that a “reasonable

belief’ that the complained*of conduct violates Title

VII will support a retaliation claim. See Jurado v.

Eleven-Fifty Corp., 813 F.2d 1406, 1411 (9th Cir.

1987) (“opposition based on a reasonable belief that

the order is discriminatory is protected.”); E.E.O.C.

v. Crown Zellerbach Corp., 720 F.2d 1008,1013

(9th Cir. 1983) (same). In Learnedthe plaintiff

sued the City of Bellevue under an insurance

statute for a prior workplace injury. Learned, 860

F.2d at 930. After filing suit, Learned was

harassed at work and filed three complaints with

the state’s human rights commission over the

course of a year, the first alleging discrimination

based on physical and mental limitations and the

second and third alleging retaliatory conduct. Id.

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at 932. In his first complaint, Learned also

checked a box alleging a violation of Title VII. Id. .

The Ninth Circuit affirmed the dismissal of

Learned’s retaliation claim because he had never

alleged “that he ever opposed any discrimination

[under Title VII]Id. The court stated that

employees charging retaliation under section

2000e-3(a) need not prove that the opposed conduct

actually violates Title VII, but “the opposed

conduct must fairly fall within the protection of

Title VII to sustain” the claim. Id. (emphasis

added). Because Learned opposed “what he

believed was discrimination based upon physical

and mental limitations only,” he could not have

reasonably believed the City violated Title VII on

that basis. Id. As a result, his retaliation claim

failed.

In Moyo v. Gomez, 32 F.3d 1382, 1385 (9th Cir.

1994), the Ninth Circuit seemed to depart from

Learned when it explained that “[a]n erroneous .

belief that an employer engaged in an unlawful

employment practice is reasonable, and thus

actionable under § 704(a) , if premised on a mistake

made in good faith. A good-faith mistake may be

one of fact or of law.” Id. at 1385. In Moyo, a.prison

guard alleged he was fired for refusing to

discriminate against black inmates. Id. At issue

was whether inmates were “employees” under Title

VII. Id. The Ninth Circuit reversed dismissal of the

retaliation claim for three alternative reasons. Id.

at 1385-86. First, Moyo may have been able to

plead his claim so as not to raise the question of

whether inmates were employees. Id. At 1385.

Second, Moyo may have been able to prove that

A20

inmates were employees./rf. And third, even if the

inmates were not employees, Moyo still would have

“be[en] able to state a retaliation claim if he could

show that his belief that an unlawful

employment practice occurred ... was otherwise

‘reasonable.’ The reasonableness of Moyo’s belief

that an unlawful employment practice occurred

[was to] be assessed according to an objective

standard - one that makes due allowance,

moreover, for the limited knowledge possessed by

most Title VII plaintiffs about the factual and

legal bases of their claims.” Id. at 1385-86. The

Court finds Learned and Moyo to be inconsistent.

Under Learned', complaints about conduct are not

protected for purposes of a retaliation claim

unless the conduct “fairly fall[s] within the

protection of Title VII.” Learned, 860 F.2d at 932.

Under Moyo, the conduct need not “fairly fall”

within Title VII. It can fall outside Title VII so long

as the plaintiff had limited knowledge and simply

made a mistake of law. Moyo, 32 21 F.3d at 1385.

For three reasons, the Court concludes that it

should follow Learned rather than Moyo. First, the

Ninth Circuit has instructed that the earlier case

(.Learned) controls over the later inconsistent case

(Moyo) because the panel that decided the later

case had no authority to overrule Ninth Circuit

precedent. Koerner v. Grigas, 328 F.3d 1039, 1050

(9th Cir. 2003) (“We begin by stating the long

standing principle that, ‘as a general rule, one

three-judge panel of this court cannot reconsider

or overrule the decision of a prior panel.m)

(quoting United States v. Gay, 967 F.2d 322, 327

(9th Cir. 1992)); SmithKHne Beecham Corp. v.

A21

Abbott Labs., 759 F.3d 990, 992 (9th Cir. 2014)

(O’Scannlain, J.} dissenting); Flack v. Blevins,

969 F. Supp. 1231, 1236 37 (D. Or. 1997) (“When*

two Ninth Circuit panel decisions conflict, the

trial court ordinarily follows the older case. That

is because one Ninth Circuit panel cannot

overrule another; only an en banc court can

overrule the prior panel decision, at least in the

absence of a change in controlling authority.”)

(citing cases). Second, the inconsistent statement in

Moyo can be viewed as dictum because it was one of

three different reasons the court gave for its ruling.

Moyo, 32 F.3d at 1385-86. Third, no Ninth Circuit

decision has cited Moyo for the proposition that

mistakes of law can support a retaliation claim,

while the Ninth Circuit has reiterated Learned&

holding that complained-of conduct must “fairly

fall” within Title VII to constitute protected

activity for purposes of a retaliation claim. See

E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951,

967 (9th Cir. 2009) (Noonan, J., dissenting); Stucky

v. Dep't ofEduc., 283 Fed. Appx. 503, 505 (9th

Cir. 2008); Sherrill\ 621 Fed. Appx. At 392; DornKerri v. Southwest Cancer Care, 385 Fed. Appx.

643, 644 (9th Cir. 2010). Applying Learned, the

Court must grant summary judgment on Maner’s

retaliation claim. As noted above, the paramour

theory does not fairly fall within the protection of

Title VH. Federal courts widely hold that

workplace favoritism of a romantic partner is not

sex-based discrimination under Title VII. Maner

therefore did not have an objectively reasonable

belief that Defendants1 conduct violated Title VII.

See Dorn -Kerri, 385 Fed. Appx. at 644

A22

(“Summary judgment was proper on the Title VII

retaliation claim regarding alleged unlawful billing

practices because Title VII does not cover billing

practices.”)) Sherrill v. Blank, No. CV-13‘00266TUC-RCC, 2013 WL 11312398, at *2 (D. Ariz. Nov.

26, 2013) (“Title VITs anti-retaliation provision

does not make actionable retaliation against an

employee that is not engaged in ‘protected activity’

within the meaning of Title VII.”); Padilla v.

Bechtel Const. Co., No. CV 06 286 PHX LOA,

2007 WL 1219737, at *6 (D. Ariz. April 25, 2007)

C‘[N]o retaliation claim exists under Title VII for

an employer’s refusal to rehire an employee for

reporting safety violations to the EEOC.

Elimination of safety violations in employment does

not ‘fairly fall within the protection of Title VII to

sustain a claim of unlawful retaliation.”’); see also

Wilson v. Delta State Univ., 143 Fed. Appx. 611,

613 (5th Cir 2005) (applying the “reasonable

belief’ standard for establishing protected activity

and dismissing retaliation claim based on

opposition to paramour favoritism).

C. Motion to Seal

The parties jointly move to seal portions of

Maner’s Response to Defendant’s Motion for

Summary Judgment, Maner’s Controverting

Statement of Facts, and exhibits in support of

Maner’s Response to Dignity Health. Doc. 84.

Pursuant to the Court’s protective order (Doc. 41),

Dignity Health has designated as confidential

certain deposition testimony and documents

concerning a non-party former employee. Doc. 84.

Because the documents are attached to a

A23

dispositive motion, the parties must show

compelling reasons for sealing them. Pintos v. Pac.

Creditors Assn, 605 F.3d 665, 677-78 (9th Cir.

2010). The identified portions contain sensitive

information about the employee, his relationship to

Dignity Health, and aspects of Dignity Health’s

business. Given the harm that could come to this

former employee and Dignity Health if the

information were revealed, the Court will grant

the parties’ request to file the identified

documents under seal.

IT IS ORDERED:

1. Defendant’s motion for summary judgment .

(Doc. 80) is granted.

2. The parties’ joint motion to file documents

under seal (Doc. 84) is granted.

The Clerk of Court shall accept for filing under

seal the document lodged on the Court’s docket as

Doc. 85.

3. The Clerk of Court shall terminate this matter

and enter judgment accordingly.

Dated this 10th day of October 2018.

David G. Campbell

Senior United States District Judge

A24

UNITED STATES COURT OFAPPEALS FOR

THE NINTH CIRCUIT

No. 18*17159

WILLIAM MANER,

Plaintiff-Appellant,

DIGNITY HEALTH, f/k/a

Catholic Healthcare West,

Defendant-Appellee.

D.C. Nos.

2-16-cv-03651-DGC

2:i6-cv-04054-DGC

OPINION

On Appeal from the United States District Court

for the District ofArizona

David G. Campbell, District Judge, Presiding

Argued and Submitted May 7, 2021 Portland,

Oregon

Filed August 20, 2021

Before- William A. Fletcher, Carlos T. Bea, and

Michelle T. Friedland, Circuit Judges.

Opinion by Judge Bea

MANER V. DIGNITYHEALTH

A25

■ V

, SUMMARY*

Title VII

Affirming the district court’s award of summary

judgment to an employer in a terminated

employee's Title VII action alleging unlawful sex

discrimination and retaliation in a case that

presented the question whether an .employer who

exhibits preferential treatment toward a

supervisor's sexual or romantic partner

discriminates against other employees because of

their sex, the panel held that discrimination

motivated by an employer's

"paramour

preference" is not unlawful sex discrimination

against the complaining employee within the

ordinary meaning ofTitle VII's terms.

Affirming summary judgment on the claim of

unlawful sex discrimination, the panel explained

that the plaintiff's "paramour preference”

reading of Title VII fails the test set forth in

Bostock v. Clayton County, 140 S. Ct. 1731 (2020),

for assessing whether an adverse employment

action violated Title VII whether changing the

employee's sex Would have yielded a different

choice by the employer. The panel noted that the

motive behind the adverse employment action is

the supervisor's special relationship with the

paramour, hot any protected characteristics of the

disfavored employees. The panel wrote that the

plaintiff's contention that "sex'* means sexual

A26

activity contradicts the "fundamental canon of

statutory construction that the words of a statute

must be read in their context and with a view to.

This summary constitutes no part of the opinion

of the court. It has been prepared by court staff for

the convenience of the reader.

MANERV. DIGNITY HEALTH

their place in the overall statutory scheme." The

panel disagreed with the plaintiffs reading of

Bostock to bar as unlawful sex discrimination any

effects on the individual that can be correlated with

sex discrimination. The panel also disagreed with

the plaintiffs assertion that the "paramour

preference" theory of Title VII liability finds support

in an EEOC regulation interpreting the statute to

prohibit sexual harassment in the workplace.

Affirming summary judgment on the claim that the

employer unlawfully terminated the plaintiff in

retaliation for opposing instances of favoritism

arising out of the relationship between the plaintiff's

supervisor and the supervisor's romantic partner,

the panel did not need to decide whether it was

unreasonable to believe that the supervisor’s

favoritism to his romantic partner violated the law,

because the plaintiff failed to establish any causal

connection between the claimed protected activity

and the termination decision.

A27

COUNSEL

Carolyn A. Kubitschek (argued), Lansner &

Kubitschek, New York, New York; Paul B. Eaglin,

Eaglin Law Office, Syracuse, New York; for

Plaintiff-Appellant.

Lindsay J. Fiore (argued) and Stephanie J. Quincy,

Greenberg Traurig LLP, Phoenix, Arizona, for

Defendant- Appellee.

MANERV. DIGNITY HEALTH

OPINION

BEA, Circuit JudgeTitle VII of the Civil Rights Act of 1964 prohibits

covered employers from discriminating against

any individual because of that individual's sex

and from retaliating against those who oppose

unlawful employment practices. See 42 U.S.C. §§

2000e-2(a)(l), 2000e-3(a). The main question

presented in this case is whether an employer who

exhibits preferential treatment toward a

supervisor's sexual or romantic partner

discriminates against other employees because of

their sex. We hold that discrimination motivated

by an employer's "paramour preference" is not

unlawful sex discrimination * against the

complaining employee within the ordinary public

meaning of Title VII's terms. We affirm the

district court’s award of summaryjudgment to

A28

the employer on that basis and for the additional

reasons expressed herein.

BACKGROUND

William "Bo” Maner worked as a biomedical

design engineer in the obstetric and gynecological

laboratory of Dr. Robert Garfield for several

decades. [Note] 1

[Note] 1 The material facts in this appeal

from summary judgment are largely

undisputed. Where factual disagreement

exists, we side with Maner as the non

moving party. Salisbury v. City of Santa

Monica., 998 F.3d 852, 854 n.l (9th Cir.

2021).

Garfield's lab depends upon a steady stream of

grant awards to fund employee salaries and

performs research with an eye toward publishing

data and developing marketable intellectual

property. Maner contributed to the work of

Garfield's lab by recruiting

MANER V. DIGNITY HEALTH

research subjects, analyzing project data,

preparing grant applications, and assisting with

patent filings.

From 1999 to 2008, Garfield's laboratory operated

A29

out of the University of Texas Medical Branch in

Galveston, Texas. Maner’s coworkers included Dr.

Yuan Dong, a male researcher, and Dr. Leili Shi,

a female researcher. Maner learned shortly after

joining the lab that Garfield and Shi were engaged

in a long-term romantic relationship that began

as a workplace affair while Garfield was married

to another woman. Garfield and Shi lived together

and occasionally demonstrated physical affection

at workplace events. Garfield brought Shi with

him to research conferences to which other

employees were not invited and conferred upon

Shi a greater share of workplace opportunities

related to publications and intellectual property

than Maner felt she should have received.

In January 2008, Garfield decided to relocate the

lab to an installation operated by Dignity Health

in Phoenix, Arizona. Garfield persuaded Dignity

Health to extend offers of employment at the new

facility to the existing team. Maner accepted the

offer and prepared to join Garfield, Dong, and Shi

in Phoenix. That April, however, Maner was

arrested at work in Galveston by state and local

police for the alleged aggravated sexual assault of

his seven-year-old daughter. Maner denied the

allegations but pleaded guilty to a lesser included

state law offense. Maner moved to Phoenix while

the charges were pending and received several

positive performance reviews and merit pay

increases. For example, Garfield complimented

Maner in one review as "solid as a rock" and

thanked him for "[o]verall an outstanding

performance."

A30

In August 2010, a Texas trial court sentenced

Maner to eight years’ probation, the terms of

which required Maner to

MANER V. DIGNITY HEALTH

reside within the state of Texas and to check in

monthly with probation officials in Galveston- In

November 2010, Garfield approved a remote work

arrangement whereby Maner would support

Garfield's lab from a satellite office in Galveston

while serving out his probation. Pursuant to this

arrangement, Maner retained his position and

promised to work full time on tasks conducive to

independent and remote completion.

Garfield's lab soon began to suffer from a decline

in the grant funding used to fund employee

salaries and research projects. In 2010, Garfield

recommended Dignity Health eliminate Dong's

position to alleviate the lab’s funding shortage.

this

accepted

employer

the

When

recommendation, Dong allegedly complained to

Dignity Health officials about Garfield's ongoing

romantic relationship with Shi. Dignity Health

responded by assigning Dr. Ron Lukas to

investigate the relationship. During an interview

with Lukas about Garfield and Shi, Maner raised

no concerns about the couples’ relationship or its

impact on other employees. Upon conclusion of

the investigation, Dignity Health reassigned Shi

A31

to a different supervisor on paper but allowed Shi

to continue working in the lab with Garfield.

In August 2011, Garfield submitted a highly

negative review of Maner's performance since the

beginning of the remote work arrangement.

Garfield rated Maner as "Needs Improvement"

across almost every evaluation metric and noted

that although Maner "has helped occasionally on

analysis of data . . .it is not always possible to

contact him." Garfield recommended Maner

"either return to Phoenix immediately or [that]

his position be terminated." Manerresponded to

the performance evaluation in two emails sent to

Dignity Health officials. The first was an email

sent to

MANER V. DIGNITY HEALTH

Lukas on August 27 ("the Lukas Letter") that urged

Dignity Health to retain Maner's remote position

because ofhis record of positive performance and the

potential availability of new sources of grant

funding. The second was a direct reply to the review

on August 29 ("the Review Response") that

challenged Garfield's claims, argued the negative

review was prompted by funding concerns, and

offered to take actions to improve his performance.

Dignity Health eliminated Maner's position on

October 1, 2011, citing Maner's poor performance

review and the lab's lack of funding. On October 11,

A32

Maner protested the termination in a letter sent to

Dignity Health's Senior Vice President for Human

Resources, Herbert Vallier ("the Vallier Letter"). In

this post-termination letter, Maner challenged the

rationales for his termination as pretextual and

accused ’’management" of ’Tabricatfing]" the

negative performance evaluation, appropriating

laboratory funds ’in a nepotistic manner,"

*Violat[ing] EEOC articles," and committing '\mfair

labor practices.” Vallier responded on October 17

with a letter agreeing with the termination decision;

Maner received his final paycheck on October 29,

2011.

Maner soon thereafter filed charges against Dignity

Health before the federal Equal Employment

Commission

Opportunity

("EEOC"),

the

administrative agency tasked with enforcing Title

VTI's antidiscrimination provisions. See 42 U.S.C. §

2000e*4. The EEOC declined to act and issued a

notice that confirmed Maner had exhausted

administrative remedies as required by Title VII

and permitted him to bring suit in federal court.

Maner proceeded to file a complaint in the U.S.

District Court for the District of Arizona. See id. §

2000e-5(e)(l), (t)(l).

MANER V. DIGNITY HEALTH

In the operative complaint, Maner brought a Title

VII sex discrimination claim alleging that Dignity

Health protected Shi (a female employee) from the

A33

impacts of reduced lab funding by terminating

Maner (a male employee). See id. §2000e-2(a)(l).

Maner also brought a Title VII retaliation claim

alleging that Dignity Health terminated him for

protesting Garfield’s favoritism toward Shi at the

expense of other employees. See id. § 2000e-3(a).

To remedy these alleged violations, Maner sought,

compensatory and punitive damages, injunctive

relief; and attorneys' fees and costs.

Dignity Health moved for summary judgment on the;

grounds -that Maner failed to state a cognizable

claim of sex discrimination, failed to establish a

prima facie case of sex discrimination or retaliation,

and failed to rebut the employer's explanations for

the termination with evidence of pretext. The.

district court granted the .motion and entered

judgment for the, employer. See Maner v. Dignity

Health,350 F. Supp. 3d 899 (D. Ariz. 20i8).

As to the sex discrimination claim, the district court

determined, that, Maner

complained - of,

discrimination based not on his sex, but on

Garfield's preference for Shi as a romantic partner.

The court construed the claim as arising under the

"paramour preference" theory of Title VII liability,

which posits that an employer engages in unlawful

sex discrimination whenever , a supervisor’s

relationship with a sexual or romantic partner

results in an adverse employment action against •

another employee (here, against a male employee

because of a female paramour). Id. at 903-04. The

court noted that while our circuit had not yet

foreclosed the availability of "paramour preference"

A34

claims under Title VII, nearly every other circuit

and the EEOC had already rejected the theory as

inconsistent with the statute and its implementing

regulations. Id. at 904—05. Relying on these

MANERV. DIGNITY HEALTH

out-of-circuit authorities, the court held that

Maner’s undisputed evidence of Garfield's

relationship with and favoritism toward Shi did not

establish a sex discrimination claim under Title VII.

Id. at 906.

As to the retaliation claim, the district court

concluded that Maner's references to "nepotism,"

EEOC articles, andlabor law in the Vallier Letter

of October 11,2011, mightreasonably be viewed by a

jury as having put Dignity Health on notice that

Maner opposed Garfield’s relationship withShi. Id.

at 907. Relying on Learned v. City ofBellevue, 860

F.2d 928 (9th Cir. 1988), however, the court held

that Maner failed to establish that he engaged in

protected activity because his complaints in the

Vallier Letter did not oppose an employment

practice that "fairly fell within" the prohibitions of

Title VH. Maner, 350 F. Supp. 3d at 909.

Maner timely appealed and filed a pro se opening

brief. We subsequently appointed pro bono appellate

counsel and requested additional briefing on

whether romantic favoritism constitutes sex

discrimination under Title VII. We have jurisdiction

A35

over this appeal from final judgment pursuant to 28

U.S.C, §1291.

II. STANDARD OF REVIEW

We review grants of summary judgment de novo and

may affirm on any ground supported by the record.

Oyamaw. Univ, ofHaw., 813 F.3d 850, 860 (9th Cir.

2015). Summary judgment is warranted when "there

is no genuine dispute as to any material fact and the

movant is entitled tojudgment as a matter of law."

Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986).

MANER V. DIGNITY HEALTH

DISCUSSION

Sex Discrimination Claim

As an initial matter, Maner concedes that the

allegations and evidence in this case relate only to

Garfield's romantic relationship with Shi and

instances of favoritism toward Shi arising from that

relationship. Maner never alleged that Garfield or

anyone else at Dignity Health evinced animus

against male employees, solicited sexual favors in

exchange for job benefits, or created a hostile work

environment through pervasive sexual harassment.

Thus, we agree with the district court that Maner's

sex discrimination claim can succeed only if Title VII

bars employment decisions motivated by a

A36

"paramour preference."

In this appeal, we must decide whether the district

court erred in adopting the consensus view among

the other circuits and the EEOC that Title VII's

prohibition ondiscrimination against any individual

because of such individual's sex does not prohibit an

employer's favoritism toward a supervisor's sexual

or romantic partner. Maner argues that the text of

Title VII gives rise to "paramourpreference" claims

because the statutory term "sex" encompasses

sexual activity between persons as well as sex

characteristics. Maner also argues that the

"paramour preference" theory finds support in the

Supreme Court’srecent interpretation of Title VII in

Bostock v. Clayton County, 140 S. Ct. 1731 (2020).

Finally, Maner argues thatTitle VII's implementing

regulations endorse the "paramour preference"

theory as a form of sexual harassment thatimpacts

third parties. For the following reasons, we reject

these arguments and join the consensus view that

an employer does not violate Title VII's prohibition

on discrimination because of an individual’s sex by

favoring a supervisor's sexual or romantic partner

over another

MANER V. DIGNITY HEALTH

employee; that is, Title VII is not violated by

exercising a "paramour preference” for one

employee over another because of a workplace

romance.

A37

Title VII makes it unlawful for a covered

employer "to fail or refuse to hire or to

discharge any individual, or otherwise to

discriminate against any individual - . .because

of such individual’s race, color, religion, sex, or

national origin." 42 U.S.C. § 2000e-2(a)(l). The

Supreme Court and the lower courts have

interpreted this language as giving rise to at least

three types of sex discrimination claims*

disparate treatment (adverse employment

actions motivated by sex); quid pro quo sexual

harassment (conditioning employment benefits

on submission to sexual advances); and hostile

work environment harassment (unwelcome

sexual advances so severe as to alter the terms

and conditions of employment). SeeBostock, 140

S. Ct. at 1741; Meritor Sav. Bank, FSB v.

Vinson,411 U.S. 57,64 (1986); Brooks v. City ofSan

Mateo,

229 F.3d 917, 923 (9th Cir. 2000). While each

claim involves different elements, all proceed from

the understanding that Title VII prohibits

discrimination against an individual in whole or in

part because of that individual's "protected

characteristic." See Bostock, 140 S. Ct. at 1739

(’The only statutorily protected characteristic at

issue in today’s cases is ’sex."); Vinson, 477 U.S.

at 64 ("Without question, when a supervisor

sexually harasses a subordinate because of the

subordinate’s sex, that supervisor 'discriminate tsj*

on the basis of sex.").

A38

The "paramour preference" theory of Title VII

liability on which Maner relies would have us

read the term "sex" broadly enough to

encompass sexual activity between persons.

Discrimination "because of . . . sex" includes

adverse employment actions motivated by

romantic and

MANER V. DIGNITY HEALTH

sexual liaisons, the theory goes, because an

employer who exhibits favoritism toward a

supervisor's paramour over other employees has

discriminated against other employees "because of

’romantic relationships or sexual activity.

As the district court correctly noted, every circuit to

consider the question has rejected the "paramour

preference" reading of Title VII. The leading case is

the Second Circuit's decision in DeCintio v.

Westchester County Medical Center, 807 F.2d 304

(2d Cir. 1986). In DeCintio, seven maleemployees

alleged that their employer discriminated basedon

sex by passing them over for promotion in favor of a

female employee who had an affair with their

supervisor. Id. at 305”_06. The court rejected the

argument that "sex" as used in the statute meant

"sexual liaisons" and "sexual attractions." Id. at 306.

Instead, the court interpreted "sex" in context

alongside "race," "color," "religion," and "national

origin," the "other categories afforded protection

A39

under Title VII," as a characteristic and not as an

activity. Id. Ultimately, the court held that sex

"logically could only refer to membership in a class

delineated by gender" and thatthe complaint failed to

state a sex discrimination claim under Title VII

because the male plaintiffs "faced exactly the same

predicament as that faced by any woman applicant

for the promotion* No one but [the paramour] could

be considered for the appointment." Id. at 306, 308.

The Fourth, Fifth, Seventh, Eighth, Tenth, and

Eleventh Circuits have since adopted DeCintiok

holding and rationale to reject "paramour

preference" claims as a standalone source of sex

discrimination liability under Title VII. See Tenge

v. Phillips Modern Ag Co.,446F.3d903,908-10(8th

Cir. 2006);Ackel v. Natl Commons, Inc., 339 F.3d

376, 382 (5th Cir. 2003); Schobert v. III. Dep't of

Transp., 304 F.3d 725,733 (7th Cir. 2002); Womack

v. Runyon, A41Y.Z& 1298,

MANERV. DIGNITY HEALTH

1300 (llth Cir. 1998) (per curiam); Taken v. Okla.

Corp. Comm to, 125 F.3d 1366, 1369-70 (10th Cir.

1997);Becerra

v. Dalton, 94 F.3d 145, 149 50 (4th Cir. 1996); see

also Kelly v. Howard I. Shapiro & Assocs.

ConsultingEng'rs, 716 F.3d 10, 14 (2d Ci£ 2013)

(per curiam) (reaffirming

DeCintdo, 807 F.2d 304).tNote] 2

A40

[Note] 2 The Third and Sixth Circuits have

affirmed similar reasoning in unpublished

dispositions. See McDaniels v. PlymouthCanton Cmty. Sch., 755 F. App'x. 461,470

(6th Cir. 2018); Miller v. Aluminum Co. of

Am., 679 F. Supp. 495, 501 (W.D. Pa.), affd

mem., 856 F.2d 184 (3d

Cir. 1988).

The Eighth and Eleventh Circuits relied in part on a

guidance document in which the EEOC took the

position that ’Title VII does not prohibit isolated

instances of preferential treatment based upon

consensual romantic relationships.” See Tenge, 446

F.3d at 908; Womack, 147 F.3d at 1300 (citing PolicyGuidance on Employer Liability Under Title VII for

Sexual Favoritism, EEOC Notice No. 915*048 (Jan.

12, 1990)). The guidance distinguished ’paramour

preference” claims from quid pro quo sexual

harassment and hostile work environment claims

recognized by Title VII and the EEOC regulations

promulgated to implement the statute. EEOC Notice

No. 915-048 (citing 29 C.F.R. § 1604.13). "An isolated

instance of favoritism toward a "paramour' (or a

spouse, or a friend) may be unfair, but it does not

discriminate against women or men in violation of

Title VII,” the guidance explained, ’’since both are

disadvantaged for reasons other than their

genders." Id. (citing, inter alia, DeCintio, 807 F.2d

304).

The district court adopted the holding of these out*

of- circuit authorities after concluding, correctly, that

our circuit has yet to pass definitively on the

"paramour preference"

A41

MANERV. DIGNITY HEALTH

theory. The closest case on point is Candelore v.

Clark County Sanitation District, 975 F.2d 588 (9th

Cir. 1992) (percuriam), in which the plaintiff alleged

that her employer violated Title Vll and its

implementing regulations by treating another

employee more favorably because of that employee's

affair with a supervisor. Id. at 590. We distinguished

between the plaintiff s favoritism claim and a hostile '

work environment claim. Id. Because the plaintiff

failed to allege "benefits or opportunities denied as a

result of discrimination," however, we affirmed the

dismissal of the complaint without passing on the

validity of the "paramour preference" theory.75./see

also id. at 592 (Kleinfeld, j., concurring) ("Our

decision should not be readas . . . establishing any

doctrine on whether discrimination on account of a

coworker's consensual romantic relationship with a

supervisor violates Title VII.").fi^ote] 3

[Note] 3 Our circuit has refused to

countenance the "parambur preference"

theory of Title VII liability in unpublished

decisions issued since Candelore. See, eg.,

Pullela v. Intel Corp., 467 F. App'x 553, 554

(9th Cir. 2012) (in context of retaliation

claim); Knadler v. Furth, 253 F. App'x 661,

664 (9th Cir. 2007); Oleszlw v. State Comp.

Ins. Fund, 10 F. App'x 419, 420 (9th Cir.

2001); Parker v. OtisElevator Co., 9 F. App'x

A42

615, 617 (9th Cir. 2001) (in context of

retaliation claim); cf Kieffer v. Tractor

Supply Co., 815 F. App'x 142, 143 (9th dr.

2020) (rejecting "paramour preference"

claim for lack of evidence).

The question whether employers may be liable under

Title VII for the consequences of favoritism toward a

supervisor's sexual or romantic partner is squarely

presented for decision in this case. Binding

precedent and ordinary principles of statutory

interpretation compel us to agree with the other

circuits and the EEOC that Title VII does not

"prevent employers from favoring employees because

MANERV. DIGNITY HEALTH

personal relationships . . .as long as [such

favoritism] is not based on an impermissible

classification. Schobert, 304 F.3d at 733 (citing

DeCintio, 807 F.2d at 306). We hold that an

employer who singles out a supervisor's

paramour for preferential treatment does not

discriminate against other employees ’because of

[their] . . .sex." 42 U.S.C. § 2000e; 2(a)(1).

Our analysis of the text of Title VII begins, and

pretty much ends, with the Supreme Court's

decision in Bostock. In Bostock, the Court

A43

interpreted the "ordinary public meaning" of the

phrase "because of ... sex" to determinewhether

employers violated the law by discharging

employees bn account of their sexual orientation

and gender identity. 140 S. Ct. at 1738. The Court

began by observingthat the "[t]he question isn't

just what 'sex1 meant, but what Title VII says

about it." Id. at 1739. Next, the Court proceeded

to derive an all-purpose test for assessing whether

an adverse employment action violated Title VHIf the employer intentionally relies in part on an

individual employee’s sex when deciding to

discharge the employee-put differently, if

changing the employee's sex would have yielded

a different choice by the employer a statutory

violation has occurred

Id. at 1741. Applying this test, the Court

concluded that discrimination based on sexual

orientation and gender identity is sex

discrimination under Title VII. If an employer

fires a male employee "for no reason other than

the fact he is attracted to men, the employer

discriminates against him for traits or actions it

tolerates in his female colleague." Id. Similarly,

if an employer fires an employee who was born

male but now identifies as female, "the

employer

MANERV. DIGNITY HEALTH

A44

intentionally penalizes a person identified as

male at birth for traits or actions that it tolerates

in an employee identified as female at birth." Id.

In both cases, "the individual employee's sex plays

an unmistakable and impermissible role in the

discharge decision." Id. at 1741-42.

Maner's "paramour preference" reading of Title

VII fails Bostock's test. To determine whether an

employer discriminated based on sex in violation

of Title VII, we ask "ifchanging the employee’s sex

would have yielded a different choice by the

employer." Id. at 1741. In the "paramour

preference" scenario, the answer is no. The

employer discriminates in favor of a supervisor's

sexual or romantic partner and against all other

employees because they are not the favored

paramour, no matter the sex of the paramour or

of the complaining employees. Changing the sex

of the complaining employees would not yield a

different choice by the employer because the

identity of the favored paramour would remain

the same. The motive behind the adverse

employment action is the supervisor's special

relationship with the paramour, not any protected

characteristics of the disfavored employees.

Maner's contention that "sex” means sexual

activity also contradicts the 'fundamental canon of

statutory construction that the words of a statute

must be read in their context and with a view to

their place in the overall statutory scheme."

Home Depot USA, Inc. v. Jackson, 139 S. Ct.

1743, 1748 (2019) (quoting Davis v.Mich. Dep't of

A45

Treasury\ 489 U.S. 803, 809 (1989)). Statutory

language surrounding a word or phrase with

multiple

meanings

possible

"typically

establishes” which meaning controls or "that one

of the possible meanings would cause the

provision to clash with another portion of the

statute." A. Scalia & B. Garner, Reading Law'

The Interpretation of Legal Texts 168(2012).

MANERV. DIGNITY HEALTH

Application of this principle leaves no room for doubt

that Title VITs prohibition on discrimination

because of an individual's "sex” does not encompass

consensual sexual activity or romantic relations

between persons.

To begin with, Title VII bars discrimination

"against any individual . . . because of such

individual's . . . sex." 42 U.S.C. § 2000e-2(a)(l)

(emphasis added). Use of the singular possessive

"individual's" means "sex" is something the

individual personally owns or possesses. Cf

Barber v. Gladden, 327 F.2d 101, 103 (9th Cir.

1964) (use of "the apostrophe *s\ denotfes]

possession or ownership" by the preceding term of

those that follow). Ordinary speakers of English

would say an individual possesses "sex" as a

characteristic and that multiple "individuals" can ,

"have sex." But no one would use "such individual's

... sex" to refer to sexual activity between persons

without converting sex into an adjective and

A46

appending a noun (''sexual activity") or creating a

compound noun ("sex act). The United States Code

is replete with examples of the latter formulations

when referring to sexual relations between

persons. [Note] 4

[Note] 4 gee, e.g., 18 U.S.C. §§ 1737

(barring "sexually related mail matter"),

2241-44 (punishing "sexual abuse," "sexual

act[s]," and "sexual conduct"); 2421-27

(punishing coercion, enticement, or

transportation *%o engage in ... sexual

activity" or "illicit sexual conduct"); 34

U.S.C. § 20913 (requiring "sex offender"

registration for sex offenses); c/FED. R.

Evm. 412(a)(2), (b)(l}-{2) (restricting

evidence of "a victim’s sexual predisposition"

and "a victim's sexual behavior").

But statutes using "sex" as a standalone term,

many of which cross-reference Title VII, similarly

indicate through context that "sex" refers to an

individual's characteristics, not an

MANERV. DIGNITY HEALTH

activity. [Note] 5

[Note] 5 See, e.g., 42 U.S.C. § 2000e(k)

(defining "because of sex" to include

A47

discrimination "on the basis of pregnancy,

childbirth, or related medical conditions;

and women affected by" the same); 20

U.S.C.

§ 1681(a) (prohibiting discrimination in

federally funded education programs "on

the basis of sex" and distinguishing

between institutions that admit "one sex1 *

and "both sexes").

See Reading Law 172-73 (’The presumption of

consistent usage applies also when different sections

of an act or code are at issue. . . . [T]he more

connection the cited statute has with the statute

under consideration,' the more plausible the

argument becomes.’).

Moreover, Title VIl's bar on sex discrimination

appears within a list of related prohibitions on

discrimination because of "race, color, religion,

sex, or national origin." 42 U.S,C. § 2000e-2(a)(l).

This is a textbook case for applying the principle

of noscitur a sociis, ”a word is known by the

company it keeps." Yates v. United States, 574

U.S. 528, 543 (2015). When a word appears in a

list of similar terms, each term should be read in

light of characteristics shared by the entire list to

"avoid ascribing to one word a meaning so broad

that it is inconsistent with its accompanying

words." Id. (quoting Gustafson v. Alloyd Co., 513

U.S. 561, 575 (1995)); see also Reading Law 195

("When several nouns . . . are associated in a

context suggesting that the words have something

in common, they should be assigned a permissible

A48

meaning that makes them similar."). The only

common denominator among "race, color, religion,

sex, or national origin" is that each refers to a

characteristic that signals membership in a

protected class. See DeCintio, 807 F.2d at 306

(concluding ’”[s]ex' . .. logically could only refer to

membership in a class delineated by gender").

Just as "such individual’s race" refers to

membership in a class and not participation in an

MANERV. DIGNITY HEALTH

athletic event, so too does "such individual's ...

sex" refer to a characteristic and not sexual

activity.

Maner reads the Supreme Court's decision in

Bostockto bar as unlawful sex discrimination any

"effectfs] on an individual" that can be correlated

with sex regardless of causation. Relying on the

Court’s statement that "our focus should be on

individuals, not groups," 140 S. Ct. at 1740,

Maner argues that Bostock requires the lower

courts to find a Title VII violation whenever an

employer's

preferential treatment for a

supervisor’s paramour increases the statistical

chance that male or female employees will be

subject to an adverse employment action. If an

employer protects a supervisor's female paramour

from termination in a reduction in force, the

A49

argument goes, the chance that a male will be

selected for termination increases because fewer

females are available for termination. We

disagree with this reading of Bostock and reject

the implication that the consensus view amongthe

circuits against the "paramour preference" theory

of Title VII liability is inconsistent with Bostock* s

rationale.

Maner’s statistical argument flatly contradicts the

Supreme Court’s emphasis on the individual

claiming discrimination. The gravamen oiBostock's

reasoning is that courts must focus on the causal

relationship between an individual employee’s sex

and the employer's decision to take an adverse

employment action against that individual. "So long

as the plaintiff’s sex was one but-for cause of that

decision, that is enough to trigger the law." Id. at

1739. Because this causal relationship is distinct in

every case, "our focus should be on individuals, not

groups." Id.at 1740.

MANERV. DIGNITY HEALTH .

It may be true that, all else being equal,

protecting a female employee from termination in

a reduction in force would make it. more likely that

a male will be terminated. But this statistical

observation tells us nothing about the employer’s

motivation as to the individual ultimately

selected for termination, who could end up being

another female employee. Without evidence that

A50

the employer selected the employee for

termination ’’because of such individual’s ... sex,”

we cannot know whether "the individual

employee's sex playted] an unmistakable and

impermissible role in the discharge decision’’ or

whether the case is one of the "countless others

where Title VII has nothing to say." Id. at 1741*42.

To be sure, the district court and the circuits which

have previously addressed

the

"paramour

preference'* theory of Title VII liability lacked the

benefit of the Supreme Court's decision in Bostock.

But the Court relied in Bostock on the same well

established Title VII principles that animated the

outcome in those prior decisions. Compare id. at

1743*44 (citing Los Angeles Dep't of Water & Power

v. Manhart, 435 U.S. 702 (1978)), withDeCintio, 807

F.2d at 307 (citing Manhart, 435 U.S. at 707 n.lcj.

The other circuits effectively anticipated Bostock's

rationale by concentrating on the causal relationship

between the plaintiff s sex and the employer's

adverse employment decision. In DeCintio, for

example, the court rejected the plaintiffs' sex

discrimination claims because there was no 'fcausal

connection" between the plaintiffs’ sex and the

employer's decision to pass them over for promotion

in favor of a supervisor’s paramour. 807 F.2d at 307.

Changing the plaintiffs' sex would not have produced

a different outcome because they would still have

"faced exactly the same predicament as that faced

by any woman applicant for the promotion." Id. at

308.

A51

MANERV. DIGNITYHEALTH

Finally, Maner asserts that the "paramour

preference" theory of Title VII liability finds support

in an EEOC regulation interpreting the statute to

prohibit sexual harassment in the workplace. See 45.

Fed. Reg. 74,677 (Nov. 10,1980), as amended 64Fed.

Reg. 58,333 (Oct. 29, 1999). 29 C.F.R. § 1604.11(g)

providesOther related practices- Where employment

opportunities or benefits are granted because of an

individual's submission to the employer's sexual

advances or requests for sexual favors, the employer

may be held liable for unlawful sex discrimination

against other persons who were qualified for but

denied that employment opportunity or benefit.

Maner reads this regulation to impose liability

whenever a qualified employee is denied

opportunities extended to a supervisor's sexual or

romantic partner because, in Maner's view, any

such relationship entails "submission" by that

partner to sexual advances. We disagree.

Subparts (a) through (f) of the EEOC regulation

are consistent with our case law recognizing two

sourcesofTitle VTI liability for sexual harassmentquid pro quo sexual harassment claims and

hostile work environment claims. SeeBrooks, 229

F.3d at 923. Employers engage in quid pro quo

A52

sexual harassment when an employee is subject

to a "tangible employment action" and the

employer "explicitly or implicitly condition[s] a job,

a job benefit, or the absence of a job detriment,

upon an employee's acceptance of sexual conduct."

Craig v. M& O Agencies, Inc., 496 F.3d 1047,1054

(9th Cir. 2007) (cleaned up); accord 29 C.F.R.

MANERV. DIGNITY HEALTH

when

occurs

1604.11(a)

(harassment

"submission to such conduct is made either

explicitly or implicitly a term or condition of an

individual's employment’!). Relatedly, employers

create a hostile work environment by subjecting

an employee to unwelcome verbal or physical

conduct of a sexual nature that was ’’sufficiently

severe or pervasive to alter the conditions of the

victim’s employment and create an abusive

working environment’ Craig, 496 F.3d at 1055

(cleaned up); accord 29 C.F.R. § 1604.11(a)

(harassment occurs when ’’conduct has the

purpose or effect of . . . creating an intimidating,

hostile, or offensive working environment’’).

Subpart (g) extends the scope of Title VII liability

for quid pro quo harassment in cases where "an

individual's submission to the employer's sexual

advances or requests for sexual favors" deprives

third parties of job benefits for which they were

C.F.R. § 1604.11(g)

otherwise qualified. 29

(emphases added). On its own terms, the

A53

regulation does not apply until and unless an

employer makes sexual advances or requests to

which an employee submits. That means Title VII

liability cannot attach for the indirect harms of

quid pro quo harassment without evidence that

the employer coerced someone into exchanging

the "quid" of sexual favors for the "quo" of

workplace benefits. Cf McDonnell v. United

States, 136 S. Ct. 2355, 2372 (2016) (explaining

the concept of "quid pro quo" exchange in the

context of political corruption). The regulation’s

"submission" requirement indicates such a case

"clearly involves a lack of consent and implies a

necessary element of coercion or harassment" that

is • absent

from

consensual

workplace

relationships. DeCintio, 807 F.2d at 307-08; see

also Tenge, 446 F.3d at 909 (distinguishing

"consensual sexual conduct with a supervisor"

from "claims of coercion or widespread sexual

favoritism").

MANERV, DIGNITYHEALTH

The EEOC took the position in the 1990 Policy

Guidance discussed above that the sexual

harassment claims covered by 29 C.F.R. § 1604.11

"may take the form of implicit 'quid pro quo'

harassment and/or 'hostile work environment'

harassment." EEOC Notice No. 915-048. But the

EEOC determined that "isolated" instances of

favoritism toward a supervisor's - consensual

sexual or romantic partner fall outside the scope

of Title VII and its implementing regulations.

Workplace romance crosses the line into

A54

"widespread" sexual harassment under the terms

of the EEOC regulation when, for example, "a

message is implicitly conveyed that the managers

view women as ’sexual playthings,., or "that the

way for women to get ahead in the workplace is by

engaging in sexual conduct ... tas] a prerequisite

to their fair treatment." Id.

Maner argues that the district court relied on the

1990 Policy Guidance in error because the document

is an interpretive rule that cannot bind private

parties. To be sure, courts may not defer to an

agency’s interpretation of its own regulation unless

the regulation is genuinely ambiguous and the

interpretation is reasonable, authoritative, and

reflective ofthe agency's substantive expertise. Kisor

v. Wilkie,, 139 S. Ct. 2400, 2414-18 (2019).

Moreover, "before concluding that a rule is genuinely

ambiguous, a court must exhaust all the ’traditional

tools' of construction. ” Id. at 2415 (quoting Chevron

USA, Inc. v. NRDC, 467 U.S. 837, 843 n.9 (1984)).

But it is well established that courts may take

judicial notice of an agency’s position to the extent

that it carries the "power to persuade." Id. at 2414

(quoting Christopher v. SmithKline Beecham

Corp., 567 U.S. 142, 159 (2012)); Skidmore v.

Swift & Co., 323 U.S. 134,140 (1944). The EEOC’s

1990 Policy Guidance reflects the agency's

longstanding and considered view on the meaning

of Title VII and its

MANER V. DIGNITY HEALTH

A55

implementing regulations, and the district court

did not err in referencing it as part Of a broader

statutory analysis.

Setting aside the fact that they' are not

controlling here, none of the district court

authorities on which Maner relies persuade us

that 29 C.F.R. § 1604.11(g) endorses the

extension of Title VII liability to "paramour

preference" claims. In Toscano v. Nimmo, 570 F.

Suppi. 1197, 1199 (E). Del. 1983), the court found

that an employer coerced an employee into

submitting to sexual advances in'exchange for a

promotion which, in turn, was denied to another

otherwise qualified employee. Submission to

employer coercion distinguishes that case from

the consensual relationships involved in

"paramour preference" claims. See DeCintio,

807- F.2d at 307. Similarly in Thompson v.

Department of State, 400 F. Supp. 2d 1, 20, 20

n.26 (D.D.C. 2005), the court held that an agency

had the right to obtain the plaintiffs personnel

files to assess whether the agency could be liable

under Title VII because the plaintiff "submitted

to her ‘ supervisor's sexual advances." By

contrast, the court in Prowell v. Oregon, No. Giv.

03-80-HA, 2003 WL23537979, at *7 (D. Or. Aug.

11, 2003), indeed cited 29 C.F.R. §1604.11(g) to

deny a motion to dismiss a claim based on

favoritism toward a supervisor's romantic

partner. But the court reached this conclusion

with precious; little analysis and without

considering Title VTI’s text orthen-existing out- ofA56

circuit authorities

conclusion.

reaching

the

opposite

Here, Maner presented no evidence that

Garfield implicitly or explicitly conditioned Shi's

favorable treatmenton the receipt of sexual

favors or that Shi submitted to coercionby

consenting to the couples' ongoing relationship.

The existence of a consensual relationship

between a supervisor and an employee is

insufficient as a matter of law to establish a

claim for sex discrimination under Title VII

MANER V. DIGNITY HEALTH

and its implementing regulations. See Craig,

496 F.3d at 1054 (requiring the employer

"condition" a benefit on the "acceptance of

sexual conduct" (cleaned up)); Brooks, 229 F.3d

at 923 ("A quid pro quo claim__ occurs when a

supervisor demands sexual favors in return for

a job benefit.").

Workplace favoritism toward a supervisor’s

sexual or romantic partner is certainly unfair to

similarly situated workers and more than likely

harms morale. But "Title VII is not a 'general

civility code,"’ and employment practicesare not

unlawful simply because they are unwise. EEOC

v. Prospect Airport Servs., Inc., 621 F.3d 991, 998

(9th Cir. 2010) (quoting Faragher v. City ofBoca

Raton, 524 U.S. 775, 788 (1998)). For the

foregoing reasons, we agree with the district court

A57

and the broad consensus of out-of'circuit

authorities that "paramour preference" claims

are notcognizable under Title VIPs prohibition on

sex discrimination.

Retaliation Claim '

Mailer's retaliation claim asserts that Dignity

Health terminated him in retaliation for opposing

instances of favoritism arising out of the

relationship between Garfield and Shi. Title VII

prohibits retaliation against any individual

"because he has opposed any practice made an

unlawful

employment

practice

this

subchapter." 42 U.S.C. § 2000e-3(a). To establish

a retaliation claim, the plaintiff must show that

he "engaged in a protected activity; Q suffered an

adverse employment action; and [that] there was

a causal connection between the two." Surrell v.

Cal. Water Serv. Co., 518 F.3d 1097,1108 (9th Cir.

2008).

MANER V. DIGNITY HEALTH

The district court held that Maner failed to establish

the protected activity element of his retaliation

claim because the conduct he opposed did not "fairly

fall within theprotection of Title VII." Maner, 350 F.

Supp. 3<L at 909, (citing Learned, 860 F.2d 928).

While the conduct alleged in this case does not

violate Title VII, our precedents have long

recognized that the statute protects an employee

A58

who opposes employer conduct in the mistaken but

reasonablebelief that the conduct is unlawful. See

Learned\ 860 F.2dat 932; EEOCv. Crown Zellerbach

Corp720 F.2d 1008,1013 (9th Cir. 1983). We need

not decide whether it wasunreasonable to believe

Garfield's favoritism toward Shi violated the law,

however, because we conclude that Maner failed to

establish any causal connection between the claimed

protected activity and the termination decision.

To establish a causal connection between opposition

to employer conduct and a retaliatory action, the

plaintiff must show 'the defendant was aware that

the plaintiff had engaged in protected activity./

Raad v. Fairbanks N Star Borough Scb. Dist, 323

F.3d 1185, 1197 (9th Cir. 2003). The record leaves

no doubt that Dignity Health eliminated Maner’s

position on October 1,2011. Logically, only events

taking place before the decision to take an adverse

employment action and known to the employer at

the time could have caused the employer's decision.

Maner protested the termination in the Vallier

Letter of October 11, received a response agreeing

with the decision on October 17, and received his

last paycheck from the employer on October 29. None

of these post-termination events could have played a

causal role in the adverse action here.

The district court concluded, and we agree, that

Maner first voiced opposition to Garfield’s

relationship with Shi in the Vallier Letter of

October 11. Maner, 350 F. Supp. 3d. at

MANER V. DIGNITY HEALTH

A59

907. While the statements in the Vallier Letter

lacked detail, a reasonable jury could conclude that

Maner put Dignity Health on notice of his opposition

to workplace favoritism by referencing "EEOC

articles," "unfair labor practices," and the

"nepotistic" allocation of funds. However, the

statements in the Vallier Letter could not have

motivated Maner's termination because they clearly

post-date the October 1 termination decision.

Communications between Maner and Dignity

Health officials prior to October lin which Maner

could have raisedthe issue contain no references to

"nepotism" or favoritism. Maner concedes that he

never complained about Garfield’s relationship with

Shi during Lukas's investigation of the lab after

Dong's termination. Neither Maner's Review

Response nor the Lukas Letter referenced sex

discrimination, sexual harassment, preferential

treatment for Shi, of any discrimination or labor

laws. These communications were insufficient to put

the employer on notice of Maner's opposition to

Garfield's relationship with Shi. See Cornwell v.

Electra Cent. Credit Union, 439 F.3dl018, 1035 (9th

Cir. 2006) (affirming summary judgment because

the protected activity occurred after the challenged

adverse employment action); Raad, 323 F.3d at 1197

(affirming summary judgment because of the lack

of evidence that employers were aware of the prior

protected activity). Because there is no evidence

that retaliation motivated Dignity Health’s

termination decision, Maner foiled to establish

the "causal connection" element of his retaliation

claim.

A60

IV. CONCLUSION

Maner failed to adduce evidence sufficient to

support Title VII claims for sex discrimination or

retaliation. We

MANER V. DIGNITY HEALTH

therefore AFFIRM the district court's award of

summary judgment to Dignity Health.

A61

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. 2:l6-cv-03651*DGC

William Maner,

Plaintiff,

PLAINTFFS

RESPONSE

TO DEFENDANT’S

MOTION

FOR SUMMARY

JUDGEMENT

Dignity Health,

Pk/a Catholic

Healthcare West

[Assigned to the Honorable David

Defendant.

Campbell]

Plaintiff* William Maner, (“Maner”) submits this

response to Defendant’s Motion

for Summary Judgment (Dkt. 80) together with

his Controverting Statement of Facts

(“CSOF”) (Dkt. 83). [Note] 1 Pursuant to Local Rule

of Civil Procedure 56.1(b), Plaintiff 22

contemporaneously submits Plaintiffs

Controverting Statement of Facts. Plaintiff

brings...

A62

[Note] 1 Plaintiff files the following redacted

document pursuant to Local Rule of Civil

Procedure 5.6(b) and the Court’s Protective

Order (Dkt. 41). The parties intend to file a

joint stipulation regarding sealing certain

information designated as confidential, but

Plaintiff, of course, wants the Court to be

able to review the sealed/redacted

information.

...this action based on violations of Title VII for sex

discrimination and retaliation. Plaintiffs

supervisor, Dr. Robert Garfield (“Garfield”),

unlawfully favored his romantic partner Leili Shi

(female) over the course of several years and

protected her from termination on two separate

instances. It is precisely because Garfield engaged

in repeated acts of favoritism towards his female

partner that Plaintiffs claims are sufficient as a

matter of law. Plaintiff has also established the

elements necessary for a prima facie case of both

sex discrimination and retaliation.

MEMORANDUM OF POINTS AND

AUTHORITIES

I. FACTUAL BACKGROUND[Note] 2

[Note] 2 Defendant’s Motion for Summary

Judgment contains a section called,

“Undisputed Facts.” While some of that

A63

section is addressed in this Response, most if

not all of Defendant’s alleged “Undisputed

Facts” are admitted and/or disputed in

Plaintiffs Statement of Controverting Facts.

A. General Background Information

Prior to Plaintiffs hire by Defendant, Plaintiff

worked for Garfield in a research laboratory in

Galveston, Texas. (SOF 7). Dr. Balducci, then

Chairman of the OB-GYN Department at St.

Joseph’s Hospital, personally hired Garfield to

work for Defendant. (CSOF 59). In 2008, when

Garfield accepted a position with Defendant in

Arizona, he asked Plaintiff to join him. (SOF 9).

Prior to either Garfield or Plaintiff joining

Defendant, Plaintiff was arrested at Garfield’s

laboratory in Galveston, Texas in April, 2008.

(CSOF 55). Plaintiff was arrested when Dr.

Garfield was'present in the laboratory. (CSOF 55).

Nevertheless, Defendant hired Plaintiff in July

2008 (CSOF l). Plaintiff disputes that the nature

of the position required his physical presence in

Arizona. (CSOF 1, 4). Garfield told Plaintiff that he

informed Dr. Balducci 23 (“Balducci”) about the

charges against Plaintiff prior to Plaintiff starting

work. (CSOF 56). Defendant also represented that

it would perform a background check prior to

i „

Plaintiffs hire. (CSOF f 57). Plaintiffs job title was

“Bio Med Design Engineer.” (CSOF 1,54).

A64

Plaintiffs job duties were varied. Plaintiffs job

duties included, among other things, gathering

and analyzing lab data from the electrical

monitoring of uterine contractions in pregnant

women. (SOF 2), providing technical engineering

support in the design and application of electronic

equipment used to monitor uterine activity (SOF 8

3), and interacting with colleagues (CSOF 4).

Plaintiff did not directly recruit patents as part of

his duties. (CSOF 5). Plaintiff also performed

experimental research on pregnancy, labor,

ripening of the cervix, and drug efficacy for

treatment. (CSOF 86). 12 Plaintiff also helped

prepare scientific abstracts for presentation at

scientific conferences and prepare scientific

manuscripts for publication. (CSOF 86). Other

members of Garfield’s laboratory in Arizona

included individuals that 16 worked with Garfield

in Texas. Leili Shi (“Shi”), Garfield’s long term

romantic partner, joined Garfield in Arizona after

working for Garfield in Texas. (SOF 10-12). Shi

performed similar duties to Plaintiff while

employed by Defendant (CSOF 86). Shi may hold a

doctorate in dentistry, but Plaintiff has no personal

knowledge of her educational background. (CSOF

10, 39). Garfield took Shi, alone, on lavish workrelated trips to conferences in the Mediterranean

at Defendant’s expense. (CSOF 87). Garfield also

gave Shi preferential treatment through unearned

publication and patent credit. (CSOF 2588-89). Dr.

Yuan-Lin Dong (“Dong”), a member of Garfield’s lab

in Texas, also joined Garfield’s laboratory in

Arizona. (CSOF 68). Dong is a man and his job

title while working for Defendant was “Research

A65

Associate.” (CSOF 69). Dong holds a Ph.D.

degree in molecular biology. (CSOF 70). •’

B. 2010 Events

i. Defendant Discovers Garfieid/Shi Relationship

At a party, most likely held in July 2010,

Balducci witnessed Garfield dancing with Shi. .

(CSOF 61-62). Balducci observed that Garfield

had his hand on Shi’s “butt and chest,” (CSOF 62).

Balducci immediately reported that Garfield and

Shi were in a relationship to Defendant’s Human

Resources Department. (CSOF 63). Balducci

testified that the reporting relationships within

his department were changed so that Shi did not .

report directly to Dr. Garfield. (CSOF 64). An email

dated September 21, 2010 and addressed to

Balducci, discusses changing the reporting

relationship of Shi. (CSOF 13, 65). Defendant’s

Employee Handbook prohibited a direct or indirect

supervisor/subordinate relationship between

individuals in a relationship. (CSOF 58).

However, Garfield, by his own admission > ■

remained Shi’s supervisor. (CSOF 66). Another

individual with personal knowledge of the

workings of Garfield’s lab observed 18 that Shi

remained under Garfield’s supervision. (CSOF 67).

ii. Dr. Dong is terminated.

On April 28, 2010, Garfield wrote to his staff and

. A66

stated, “[ujnless we are successful in getting

additional funding in the near future we might

all need to seek 23 alternative positions.” (CSOF

71). However, on June 7, 2010, Garfield

indicated to Dong that he was terminating Dr.

Dong. (CSOF 72). Garfield also complained about

Dong’s job performance prior to Dong’s

termination. (CSOF 73). Plaintiff personally 27

witnessed multiple presentations of Dong’s

research at academic conferences, and

personally witnessed Garfield praise Dong for bis

research and work product. (CSOF 74). Dong’s

termination was effective on September 9, 2010

and the reason given for 3 termination was

“reduction in force.” (CSOF 75). However, Dr.

Ronald Lukas testified that Dong was terminated

solely because of his performance. (CSOF 76). Dr.

Garfield told Plaintiff that Dr. Dong was “saying

negative things about him [Dr. Garfield] and

Leili [Shi] and causing trouble with the

administration” after Dr. Dong was terminated.

(CSOF 77). Plaintiff would submit that the

varying reasons for Dong’s termination, just like

the varying reasons for Plaintiffs termination, are

false, and clearly a pretext for discrimination.

iii. Dr. Ronald Lukas’s Investigation of Garfield’s

Laboratory

Dr. Ronald Lukas, employee of Defendant,

investigated Dr. Garfield’s laboratory after Dr.

A67

Dong’s termination in 2010. (CSOF 78). Dr.

Garfield warned Plaintiff about the upcoming

investigation and warned Plaintiff that he would

be questioned by Dr. Lukas. (CSOF 79). Manei*

did not report any issues with Dr. Garfield’s

laboratory to 18 Dr. Lukas, (CSOF 80). Maner did

not report any issues to Dr. Lukas because he

was afraid of reprisal by Dr. Garfield. (CSOF 81)..

iv. Plaintiffs Return to Texas and Bill & MplinHa

Gates Grant

Application.

In August 2010, Plaintiff was placed on probation

by a Texas court. (SOF 22). As part of the

conditions of his probation, Plaintiff was unable

to leave Texas without 25 permission from his

probation officer and was required to physically

report to his probation officer in Texas. (CSOF 23).

Plaintiff asked Garfield if he could transfer to, and

work remotely from, Texas. (SOF 24). Garfield

could have terminated Plaintiff at

any time for any reason because Plaintiff Was an at

will employee: (CSOF 25). Garfield contacted his

colleagues at Reproductive Research Technologies,

LP, (“RRT”) in Houston, Texas, and made an

arrangement for Plaintiff to work at RRTs

facilities. (SOF 28). Plaintiff also established a

home office. (SOF 29). Also, in 2010, Plaintiff ,

wrote, prepared, and submitted a grant.

application to the Bill & Melinda Gates '

A68

Foundation on behalf of Defendant. (CSOF 90).

The grant application sought an award of

$100,000, with $60,000 allocated to personnel

expenses (namely to fund Plaintiffs position) and

$40,000 allocated to equipment. (CSOF 91, 92).

The grant application listed the participants in

the postpartum hemorrhage 12 experiments,

should the grant be awarded. One of the

participants listed was a “Research Engineer.”

(CSOF 92). The $100,000 grant was awarded by

the Bill & Melinda Gates Foundation on April 4,

2011. (CSOF 193).

C. Plaintiff is terminated.

After Plaintiff returned to Texas, Plaintiff

continued to perform his duties for Defendant

and specifically for Garfield. (CSOF 82). Plaintiff

produced several hundredwork products at the

direction of Garfield while in Texas. (CSOF 83).

Garfield praised Plaintiffs work product and did

not raise issues about Plaintiffs remote working 22

arrangement in Texas prior to Plaintiff s August

11, 2011 performance evaluation. (CSOF 84).

Plaintiffs August 11, 2011 performance

evaluation contained numerous falsehoods

regarding Plaintiffs performance. (CSOF K 30). In

fact, Garfield seemed untroubled by Plaintiffs job

performance immediately prior to drafting

Plaintiffs evaluation. On July 25, 2011, Garfield

wrote, “[w]e need to come up with a strategy for

A69

paying [Plaintiff] as soon as possible. We

[Garfield’s laboratory at Defendant] are running

out of funds to support [Plaintiff].” (CSOF 85).

However* Defendant’s employee Matthew Nelson

admitted that Garfield had sufficient funds to

pay all of his staff at the time of Plaintiffs

termination. (CSOF 42). Plaintiff did not state

that there were insufficient funds to support all

of Garfield’s staff. (CSOF 43) Plaintiff was

ostensibly terminated on October 1, 2011. (SOF

32). Defendant has provided multiple, shifting

reasons for Plaintiffs termination. (CSOF 41, 42).

However, Plaintiff continued to work for the

benefit of Defendant through October and

November 2011. (CSOF 94). Defendant’s Employee '

Handbook defines the “effective date of

[employee’s] separation will be the last day in

which you actually worked...” (CSOF 95). At the

time of Plaintiffs termination, Garfield’s lab was

composed of only male employees other than Leili

Shi. (CSOF 96). Leili Shi’s father, Shao-Qing Shi,

was also a member of Garfield’s laboratory. (CSOF

H97).

D. RpffllintinTi

After Garfield submitted his fabricated August 11,

2011 Performance evaluation, Plaintiff provided a

response to Human Resources in addition to the

Lukas Letter and Vallier Letter. (SOF 47, 48,

CSOF 47, 48). Dr. Lukas agreed that the contents

of the Lukas letter discussed allegations of

discrimination. (CSOF 50). Plaintiff also

specifically complained about discriminatory

treatment in the Vallier Letter and testified

A70

accordingly. (CSOF 51*53).

STANDARD OF REVIEW

“Summary judgment is appropriate only if, taking

the evidence and all reasonable inferences drawn

therefrom in the light most favorable to the non

moving party, there are no genuine issues of

material fact and the moving party is entitled to

judgment as a matter of law.” Furnace v. Sullivan,

705 F.3d 1021, 1026 (9th Cir. 2013) (internal

quotation marks omitted). “An issue of material

fact is genuine if there is sufficient evidence for a

reasonable jury to return a verdict for the non

moving party.” Thomas v. Ponder; 611 8 F.3d

1144, 1150 (9th Cir. 2010) (internal quotation

marks omitted). “In evaluating motions for

summary judgment in the context of employment

discrimination, we have emphasized the

importance of zealously guarding an employee’s

right to a full trial, since discrimination claims are

frequently difficult to provide without a full airing

of the evidence and an opportunity to evaluate

the credibility of the witnesses.” McGinest v. GTE

Service Corp360 F.3d 1103, 112 (9th Cir. 2004).

n. T.F.OAT, ARftlTMENT

figipplained of mgnizflh]^ violations

of Title VP

A71

Defendant fundamentally mischaracterizes the

nature of Plaintiffs claims. Plaintiff complains of

widespread sexual discrimination over a period of

years by Dr. Garfield, who gave work preferences •

to his female partner, Leili Shi, as compared to the

male workers. This discrimination took the form of

preferential work trips for Shi, unearned

publication credit for Shi in both research papers

and patents, and that Shi was protected from

termination on two instances when Dr.

Garfield’s laboratory suffered funding issues. See

Dkt. 30, Plaintiffs First Amended Complaint 30*

65. To rephrase, Plaintiff is not complaining of a

single isolated instance of favoritism, rather

Plaintiff is

complaining of Dr. Garfield’s continued,

unwavering, favoritism towards his female

romantic partner at Defendant, Leili Shi. After

mischaracterizing Plaintiffs claims about the

ongoing preference for Leili Shi, Defendant then

cites extensively to cases that are not controlling

authority. See Dkt. 80, Defendant’s Motion for

Summary Judgment at p. 6-7. Even if they were

controlling authority, which it bears repeating

that they are not, the cases are frequently

factually distinguishable from the case at bar

because they concern isolated instances of

favoritism. See e.g. DeCintio v. Westchester Cty.

Med. Ctr. 807 F.2d 304, 305 (2d Cir. 1986) (“The

gravamen of [plaintiffs’] complaint was that theyhad been unfairly disqualified from 12

A72

promotion...”)5 Womack v. Runyon, 147 F.3d

1298, 1299 (11th Cir. 1998) (plaintiffs Title VII

complaint arose solely from a failure to promote)!

Taken v. Oklahoma Corp. Comm h, 125 F.3d 1366,

1368 (plaintiffs alleged that they were not

promoted because a 16 supervisor promoted his

romantic partner)! Bercerra v. Dalton, 94 F.3d 145,

147 (4th Cir. 1996) (plaintiffs sexual

discrimination case arises from a single failure to

promote.) To the extent that allegedly persuasive,

non-controlling case law is relevant, several courts

have reached an opposite conclusion to the line of

cases cited by Defendant. See, e.g. King v.

Palmer, 598 F. Supp. 65, 67 (D.D.C.), reversed on

other grounds, 778 F.2d 878 (D.C. Cir. 1985)

(female employee who claimed promotion was

awarded to paramour of supervisor established a

prima facie Title VII case)! Toscano v. Nimmo,

570 F. Supp. 1197, 1198-1201 (D. Del. 1983)

(Title VII violation where supervisor’s paramour

was awarded a promotion instead of plaintiff)!

Priest v. Rotary, 634 F. Supp. 571, 581-582 (N.D.

Cal. 1986) (unlawful discrimination occurs when an

employer affords preferential

treatment to female employees who submit to his

sexual advances)! Broderick v. Ruder, 685 F. Supp.

1269, 1277 (D.D.C. 1988) (“Title VII is also

violated when an employer affords preferential

treatment to female employees who submit to

sexual advances or other conduct of a sexual

nature and such conduct is a matter of common

A73

knowledge.”). Defendant cites to a single case from

a district court within the Ninth Circuit and

the Ninth Circuit opinion affirming the district

court’s ruling. However, Defendant’s reliance on

these cases, Keenan v. Allan, 889 F. Supp. 1320

(E.D. Wash. 1995), affd, 91 F.3d 1275 (9th Cir.

1996), is problematic and this line of cases is not

controlling authority within the Ninth Circuit.

Although Plaintiff concedes that the district court

did consider whether preferential treatment by a

supervisor constitutes a claim under Title VII,

the district court held plaintiffs sex discrimination

claim was barred because Plaintiff did not obtain a

“right to sue letter” which is a necessary

prerequisite to filing a lawsuit alleging a violation

of Title VII. See Keenan v. Allan, 889 F. Supp.

1320, 1371 CE.D. Wash. 1995). It is also unclear

whether this issue of sexual favoritism was

appealed for consideration by the Ninth Circuit.

The only consideration the Court gives to

appellants’ sex discrimination claim is to note that

appellant failed to produce evidence that a right to

sue letter was issued for her charge, a necessary

prerequisite for a Title VII claim. Keenan v. Allan,

91 F.3d 1275,1278 n.3 (9th Cir. 1996). On the

other hand, the Ninth Circuit has clearly

addressed the issue of sexual favoritism in

Candelore v. Clark County Sanitation District, 975

F.2d 588 (9th Cir. 1992) (per curium). The Court in

Candelore cites to 29 C.F.R. §1604.1l(g) as the

standard that a plaintiff alleging sex

discrimination based on favoritism must meet to

prevail.

A74

Candelore at 590. The Court then concludes that

plaintiff failed to identify employment benefits or

opportunities that she was entitled to but failed to

receive and therefore failed to state a prima facie

case under Title VII. Id. It is, therefore, undecided

whether sexual favoritism presents an actionable

claim under Title VII in this circuit, because the

plaintiff in Candelore failed to establish facts to

support a prima facie case of sex discrimination,

Candelore v. Clark County Sanitation District,

975 F.2d 588, 591-592 (9th Cir. 1992) (Kleinfeld,

J., concurring), unlike Maner, in the case at bar.

The regulation at 29 C.F.R. §1604.11(g), also

described as a guideline, considered by the Court

in Candelore, states: “Where employment

opportunities or benefits are granted because of an

individual’s submission to the employer’s sexual

advances or requests for sexual favors, the

employer may be held liable for unlawful sex

discrimination against other persons who were

qualified for but denied that employment

opportunity or benefit.” 29 C.F.R. §1604.1l(g).

This regulation bears relevance to the application

of Title VII because the EEOC is given statutory

authority to issue, amend, and regulations to carry

out the provisions of Title VII. See 42 U.S.C. §

2000e-12. The EEOC issued further guidance on

29 C.F.R. §1604.1l(g). In part the EEOC stated

that if favoritism based upon the granting of sexual

favors is widespread in a workplace, both male and

female colleagues who do not welcome this conduct

can establish a hostile work environment in

A75

violation of Title VII regardless of whether an

objectionable conduct is directed at them and

regardless of whether those who were granted

favorable treatment willingly bestowed the sexual

favors. EEOC Policy Guidance on Employer

Liability under Title VII for Sexual Favoritism,

EEOC Notice No. 915-048 (January 12, 1990). In

the Ninth Circuit, “EEOC

Guidelines are entitled to some deference. The

level of deference, however, depends on the

EEOC’s thoroughness of consideration, validity of

its reasoning,' consistency with earlier and later

pronouncements, and power of persuasion/’

Dawavendewa v. Salt River Project Agr. Imp. and

Power Dist, 154 F.3d 1117, 1121 (9th Cir. 1998).

B. P1nintiffft &ot diacriminntinn dfliin dnpa not fail •

as a matter oflaw.

Defendant has generally described the prima facie

and burden shifting framework associated with

Title VII sex discrimination claims. To recap,

Plaintiff must first exhibit a prima facie case by

establishing that- l) Plaintiff belongs to a protected

class; 2) Plaintiff was qualified for the position; 3)

Plaintiff was subject to an adverse employment

action; and 4) similarly situated individuals outside

of Plaintiffs protected class were treated more

favorably, or other circumstances surrounding the

adverse employment action give rise to an

inference of discrimination. See Hawn v. Exec. Jet

A76

Mgmt, Inc., 615 F.3d 1151, 1156 (9th Cir. 2010).

After establishing a prima facie case, Defendant

must then articulate a legitimate, non*

discriminatory reason for its adverse employment

action. See Nicholson v. Hyannis Air. Service, Inc.,

580 F.3d 1116, 1123 (9th Cir. 2009). If Defendant

makes that showing, Plaintiff must then

demonstrate that Defendant’s seemingly non*

discriminatory reason is, in fact, pretext for

unlawful discrimination. Id. Plaintiffs burden to

survive summary judgment is low; Plaintiff needs

“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

Forest

a full record.” Reynaga v. Roseburg

Products, 847 F.3d 678, 691 (9th Cir. 2017)

(internal quotation marks and citation

omitted); see also Rashdan v. Geissberger; 764 F.3d

1179, 1183 (9th Cir. 2014) (“[Tlhe requisite degree

of proof necessary to establish a prima facie case

for [a] Title VII...claimD on summary judgment is

minimal and does not even need to rise to the

level of a preponderance of the evidence ”) (citation

omitted.)

1. Plaintiff has established a prima fade case.

Defendant concedes that Plaintiff has established

the first three elements required to create a prima

A77

facie case. See Dkt. 80 at 8. The Ninth Circuit has

a broad view of the similarly situated

requirement; employees are considered similarly

situated to plaintiff when they have similar jobs

and display similar conduct. Sari v. Nielsen Media

Research, Inc., 658 F.3d. 1108, 1114 (9th Cir. 2011)

(“Other employees are similarly situated to the

plaintiff when they have similar jobs and display

similar conduct. The employees need not be

identical but must be similar in material

respects. Materiality depends on the context and

is a question of fact that cannot be mechanically

resolved.”) (quotations and citations omitted.).

Further, “it is important not to lose sight of the

common-sense aspect of the similarly situated

inquiry. It is not an unyielding, inflexible

requirement that requires near one-to-one

mapping between employees because one can

always find distinctions in performance histories

or the nature of the alleged transgressions.” Id.

at 1114-1115. (quotations and citations omitted).

Here, Plaintiff has established that Plaintiff and

Shi performed similar work duties. (CSOF 86).

Plaintiff and Shi performed these similar duties

despite Plaintiffs relocation and the difference in

educational background. The common-sense

conclusion is that these two scientific researchers

focused on obstetrics and gynecological and

reproductive sciences research in a five-person

research laboratory are similarly situated for the

purposes of Title VII prima facie consideration.

A78

Alternatively, if the Court concludes that Shi and

Plaintiff are not similarly situated, Plaintiff can

satisfy his burden by demonstrating that other

circumstances surrounding his termination give

rise to an inference of discrimination. Hawn at

1156. Here, Plaintiff has provided evidence that

Shi was given preferential treatment in numerous

ways. Shi was taken on lavish work trips by

Garfield, Shi was awarded unearned publishing

credit and patent inventorship, and males were

terminated, on dubious performance grounds, to

protect funding for Shi’s job. Additionally,

Defendants have offered shifting explanations for

why it terminated both Dong and Plaintiff, which

standing alone should preclude summary

judgment. See Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 147 (2000).

2. Defendant’s articulated reasons for termination

were pretextual.

Plaintiff does not dispute that Defendant’s

articulated reasons for Plaintiffs termination

appear lawful on a surface level. However, Garfield

demonstrated a pattern of firing male employees

during a funding crunch. He fired Dong first, and

then during the next funding crisis, fired Plaintiff.

Garfield made sure that his decisions to terminate

would not be questioned by fabricating

performance issues against the male employees he

chose to fire. Garfield’s fabricated performance

review in Plaintiffs case especially rings false

because Garfield made and approved the

arrangements for Plaintiff to work remotely in

Texas, and even praised Plaintiffs work efforts

A79

throughout the period that Plaintiff worked from

Texas. Further, Defendant’s employees and ex

employees cannot even agree on the termination

reasons for each male employee and their reasons

clash

with the paperwork prepared as part of the

terminations. (Cf. CSOF 75 with CSOF 76, SOF 32

with CSOF 41). Turning to Defendant’s other

arguments regarding pretext, Defendant claims

that Plaintiff s failure to identify other female

employees condemns his Title VII claim. However,

the evidence shows that there were no other

female employees in Garfield’s lab. (CSOF 96). It

would be impossible for Plaintiff to identify another

female employee who received preferential

treatment because no other females worked for

Garfield. Second, Defendant cites Fleming v. IASIS

Healthcare Corporation, 151 F. Supp.3d 1043 (D.

Ariz. 2015) for the proposition that a lack of

negative remarks about Plaintiffs gender is

somehow dispositive. The Court in Fleming Apes

not state if it gave weight to the lack of remarks

about plaintiffs gender when rendering its

decision, and cites absolutely no authority, in any

part of the opinion, for why it gave weight to the

absence of remarks about gender and why this is

dispositive in any way. The persuasive nature of

Flemining is de minimis at best. Third, Defendant

concludes that Garfield’s beneficial employment

decisions undercut Plaintiffs claims of

discriminatory pretext and establish a strong

A80

inference of no discriminatory conduct. Defendant

specifically cites to Garfield’s favorable

performance reviews and his assistance in

relocating Plaintiff back to Texas. However, this

inference is shredded when the facts at bar are

closely examined. Garfield made multiple, constant

decisions that favored his female partner. Garfield

also fired a male employee, Dong, to protect his

girlfriend prior to Plaintiffs termination. Any

inference that Garfield was behaving lawfully is

fatally undercut by Garfield’s pattern and practice

of unlawful

behavior.

Fourth, Defendant argues that since Garfield was

also a male, there should be an inference that no

discrimination occurred. Plaintiff agrees that

Garfield was a male, but for the reasons described

more fully above, namely his unending preferential

treatment of Shi, and his termination of male

employees to protect Shi’s job, this inference bears

little evidentiary weight.

C. Plflintifffl Retaliation fflnim does nnt. fail as a

matter nf law.

Defendant correctly cites the standard for a prima

facie case of retaliation. Plaintiff must show that1) he engaged in a protected activity; 2)

Defendant subjected him to a materially adverse

employment action; and 3) there was a causal link

between the protected activity and the adverse

A81

action. See Defendant’s Motion for Summary

Judgment (Dkt. 80) at 11. If Plaintiff can

establish a prima facie case, then the burden

shifts to Defendant to proffer a legitimate, lawful

reason for the adverse employment decision.

Surreil v. California Water Service Co., 518 F.3d

1097, 1108 (9th Cir. 2008). Plaintiff must then

show that Defendant’s actions were pretextual. Id.

1. Plaintiff can establish a prima facie case of

retaliation.

a. j

in a nrotectedactivitv.

Plaintiffs letters, taken together, describe

opposition to unfair and unlawful Nepotism in

violation of “EEOC articles.” (CSOF 52). “When an

employee communicates to her employer a belief

that the employer has engaged in...a form of

employment discrimination, that communication

virtually always constitutes the employee’s

opposition to the activity.” Crawford v. Metro. Gov't

ofNashville &

Davidson Cty555 U S. 271, 276 (2009). The

language of the communication may be informal,

as long as circumstances show that the individual

is conveying opposition or resistance to a perceived

potential violation. See Okoiliv. City ofBalt, 648

F.3d 216,224 (4th Cir. 2011) (plaintiff did not need

to use specific terminology to convey opposition to

an unlawful employment practice.) Here, Plaintiff

complained of specific violations of “EEOC

A82

articles” as related to nepotism. That is sufficient

as a matter of law to constitute a protected

activity. Additionally, Plaintiff can establish that

he engaged in a protected activity because he

reasonably believed it was unlawful. See Berg v.

La Crosse Cooler Co., 612 F.2d 1041, 1045-1046

(7th Cir. 1980) (plaintiffs opposition to an

employment practice that was subsequently

deemed lawful still protected plaintiff from

retaliatory discharge.).

b. Plaintiff can show a nexus between his protected

activity and his termination.

The “but-for” causation standard does not require

that relation be the “sole cause” of the action. Univ.

of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517,

2543. Additionally, the Ninth Circuit has

repeatedly held that “proximity in time [between

protected activity and adverse action] may support

an inference of retaliation sufficient to survive

summary judgment.” Anthoine v. North Central

Counties Consortium,, 605 F.3d 740, 751 (9th Cir.

2010). Here, Plaintiffs termination date is

disputed. (CSOF 94-95). Accepting Plaintiffs

conclusion as true means that all of Plaintiffs

letters were delivered prior to his termination.

Therefore, the temporal proximity of Plaintiffs

complaints and his termination clearly indicate a

nexus.

2. Plaintiff has produced evidence ofnretext

A83

As described extensively above, Plaintiff has

provided substantial evidence of pretext. Garfield

engaged in a pattern and practice of termination

and Defendant’s explanations for Plaintiffs

termination have shifted and changed.

mCQNCLUSTQN

For all of the foregoing reasons, Plaintiff

respectfully requests that the Court deny

Defendant’s motion for summary judgment.

Dated- May 30, 2018 Respectfully submitted,

COANE AND ASSOCIATES, PLLC

By: 7s/ Matthew P. Swiger

Matthew P. Swiger

Bruce A. Coane

5177 Richmond Ave., Suite 770

Houston, Texas 77056

Telephone: 713-850-0066

Facsimile: 713-850-8528

ATTORNEYS FOR PLAINTIFF

A84

CERTIFICATE OF SERVICE

I hereby certify that on the 30th day of May, 2018,1

electronically transmitted the attached document

to the Clerk’s Office using the CM/ECF System for

filing and transmittal to the following individuals^

Robert G. Vaught

Email- robert.vaught@quarles.com

Stephanie J. Quincy

Email- stephanie.quincy@quarles.com

QUAERES & BRADY LLP Renaissance One

Two North Central Avenue

Phoenix, AZ 85004-2391

/s/Matthew P. Swieer

Matthew P. Swiger

A85

CATHOLIC HEALTHCARE WEST

ADMINISTRATIVE POLICY AND PROCEDURE

FROM-

CHW Human Resources

SUBJECT-

Separation [120.5.002]

EFFECTIVE DATE: November 23, 2009

REVISED:

January 19, 2006

ORIGINAL EFFECTIVE DATE:

2006

REPLACES:

January 19,

HR Reference Manual

APPLIES TO:

System Offices:

Acute Care Entities:

Non-acute Care Entit

I. POLICY:

Catholic Healthcare West ("CHW”) System Offices

reserve the right to separate an employee’s

services. Employment with CHW System Offices is

A86

voluntarily entered into and the employee is free to

resign at any time. Similarly, CHW System Offices

are free to conclude an employment relationship

where it believes it is in CHW System Offices best

interest at any time.

Nothing in this policy will be construed as altering

the at-will nature of employment with CHW

System Offices. No one other than the Chief

Executive Officer has the authority to alter the atwill nature of employment with CHW System

Offices, to enter into an agreement for employment

for a specified period, or to make any agreement

contrary to this policy.

CHW is an “at-will” employer. This means that

both the individual employee and CHW have the

right to terminate the employment relationship at

any time, with or without cause, and with or

without notice. Nothing in this policy should be

interpreted to modify the right of the employee or

CHW to terminate the employment relationship at

will. No modification of that relationship can occur

unless it is made explicitly in writing and signed by

the Chief Executive Officer of CHW.

It is the policy of CHW System Offices to compute

and present final pay to separated employees in

accordance with all applicable Federal and State

laws.

A87

II. PRINCIPALLY AFFECTED DEPARTMENTS:

All CHW System Offices are principally affectedly

the policy elements and shall receive the required

training, as provided in policy 70.1.003, Compliance

Policy Dissemination and Implementation Process.

ni. GUIDELINES:

This policy governs all types of separations, both

voluntary and involuntary. The'term “separation”

refers to the total cessation of an' employment

relationship with CHW System Offices.

All involuntary separations require advance

approved from Human Resources, as defined in

policy 120.5.001, Personnel Transactions Review

and Approval. An Employee Record Change

(“ERC”) form/CHW HR Employee Change form

(electronic version), will be completed by the

employee’s direct supervisor upon notification or

decision to separate employment. This form will be

forwarded to Human Resources.

Compensation due to an employee at the time of

separation is all hours worked and accrued but

unused paid time off.

The date of separation will be considered the last'

day worked.

When requested, Human Resources will conduct an

A88

exit interview withemployees who resign.

Employees may also be contacted by a third party

administrator to conduct an exit interview on

behalf of CHW System Offices.

Eligibility for re-hire• All employees deemed “eligible for rehire” will

be eligible for re-employment consideration.

• Any employee who has been terminated or

otherwise separated for gross misconduct

inefficiencies will automatically be classified as

“ineligible for re- hire.” This applies to both regular

and temporary employment.

• Eligibility for rehire is determined by Human

Resources with input from Leadership and Legal.

The following examples of involuntary separation,

although not inclusive, may render an employee

ineligible for rehire.

• Stealing

• Acts of workplace violence

• Insubordination

• Unsafe work practices

• Sleeping on the job

• Breaches of confidentiality

• Falsification of documentation or application

information

• Job abandonment

• Job performance deficiencies

A89

Employees who resign with at least 72 hours’ .

advance notice must be provided their final

paycheck on their last day of work or in accordance

with state regulations.

Employees who resign without providing at least 72

hours' advance notice must be provided their final

paycheck within 72 hours of their resignation. An

employee who resigns without providing a 72'hour

notice is entitled to receive payment by mail if he or

she requests and designates a mailing address. In

this event, the date of mailing is considered the

date of payment.

If an employee abandons his/her employment, the

final paycheck will be mailed to the employee's last

known address within two working days following

the determination of job abandonment.

Employees who are separated involuntarily must

be provided their final paycheck on their last day of

work or in accordance with state regulations;

The final day of employment for purposes of benefit

calculations is the last day actually worked.

Employees must return CHW System Offices

property, such as keys and equipment, at the time

the final paycheck is provided.

Upon the death of an active employee, wages

earned but unpaid and paid time off accrued but

A90

not taken, as of the date of death, are paid to the

employee’s designated beneficiary.

When an employee separates from CHW System

Offices, PTO, Extended Illness Benefits and Benefit

Coverage will be handled as followsPaid Time Off

All earned Paid Time Off (PTO) hours, accrued but

unused through the last day worked are paid as of

the separation of employment.

• PTO does not accrue beyond the last day

worked.

Extended Tllness Benefit

• Extended Illness benefit hours are not paid at

separation; however, Extended Illness hours

accrued through the last day worked are restored if

the employee's employment is reinstated as

provided in policy 120.4.005, Reinstatement and

Rehire and Restoration ofServices.

Benefit Coverage

Generally, all insurance benefit coverage ends as

followsDav of Separation

• Welfare benefits such as STD and Flexible

Spending Accounts cease the date of separation. An

employee receiving disability benefits at the time of

separation, will continue receiving those benefits

until they are no longer disabled.

A91

(

End of Month of Separation

• Health benefits such as medical, dental, vision,

life and accidental death and dismemberment

coverage will continue through the- last day of the

month in which the employee separates.,

COBRA Coverage

• Employees may elect to continue their medical,

dental, and vision coverage, under COBRA by

paying the appropriate COBRA costs as determined.

by law. Life, Accidental Death and Dismemberment

and Long Term Disability insurance may be

converted/ported into a private policy.

Should you have any questions regarding this

policy please Contact Human Resources:

; <

‘

•

A92

.;:

PETITIONER WORKING ON BEHALF OF

EMPLOYER BEYOND OCTOBER 1. 2011 - A

RE: Draft of PCT Application for Uterine Stimulator

Electrode Array Devices and Connectors (CHW

102.2/Q&B 128464.00011)

william maner <williammaner@hotmail.com>

Wed 10/26/2011 8:48 PM

To: Cook, Victoria <victoria.cook@quarles.com>;

Perfect

Thanks,

From: Victoria.Cook@quarles.com To:

williammaner@hotmail.com

Date: Wed, 26 Oct 2011 13:24:06 -0700

Subject: RE: Draft of PCT Application for Uterine

Stimulator Electrode Array Devices and

Connectors (CHW 102.2/Q&B 128464.00011)

We came across this when we filed the first

application on the system. The issue with the

first application is that we only said that

frequencies can be up to 30 Hz or greater, which

only leaves us with definite support to say 30 Hz.

I changed the specification in this new

application to state 30 Hz or greater, or 100 Hz or

A93

greater, so now we can say between 5 and 100 Hz

in the claims. We did leave the claims in the first

application to be open'ended (just >5 Hz), so if

those go through, we can make the change in this

new application and go from there. It's just a

matter of different strategies to

balance out getting a patent issued quickly and

getting good, broad claims issued.

Note that competitors cannot file patents for

above whatever range you claim because,

although higher than 30 (or 100) hertz may not

be claimed, we describe anything greater than 5

Hz in the

written specification. Therefore, their patents

could not be considered novel in view of your

specification.

Victoria C. Cook Patent Agent Quarles & Brady LLP

P: (602) 230-5512

F: (602) 229-5690

Victoria .Cook@a uarles.com

From- william maner

{mailto:williammaner@hotmail.com]

Sent- Wednesday, October 26, 20111*01 PM

To: Cook, Victoria

Subject: RE: Draft of PCT Application for Uterine

Stimulator Electrode Array Devices and Connectors

(CHW 102.2/Q&B 128464.00011)

A94

Not sure what Bob thinks, but putting in an upperend value (like 30 Hz) leaves the door wide open for

a potential competitor to come in subsequently and

file a patent thatutilizes frequencies above 30 Hz

(not sure that such higher frequencies would work

effectively to contract the uterus, but it is still

theoretically possible). We had hoped to "shut the

door" completely to competitors on all frequencies

above 5Hz for treating PPH.

However, if you think that it is necessary to

describe an upper cutoff value in order to insure

that the patent is novel, then I suggest that it be a

higher value, like 100Hz. That would at least push

any competitive filed patents into a stimulation

frequency region that would likely be much less

useful to the competitor for treating PPH.

From- Victoria.Cook@quarles.com

To: WilliamManer@Hotmail.com;

Robert.Garfield@chw.edu CC:

Manoja.Lecamwasam@chw.edu

Date: Wed, 26 Oct 2011 10:07:25 -0700

Subject: RE: Draft of PCT Application for Uterine

Stimulator Electrode Array Devices and Connectors

(CHW 102.2/Q&B 128464.00011)

A95

Hi Bob and Bo, ..

•

' ?

Thank you for your quick responses and

comments on the application draft. The

application has been finalized based on Bo's

comments below. We added system and method

claims for the whole current-producing system

including the electrode array devices, but did not

add method claims for each individual.electrode

device. Based on the costs of filing more

independent claims, I think it may be best to hold

off and see what kind of coverage we can get with

this first claim set, and then either file a

continuation down the road with additional

method claims, or add new claims to the current

application if we’re not getting the coverage we

want with the system claims. You may also

notice that the whole system and method claims

are limited to 5-30 Hz instead of just >5Hz. The

reasoning behind this choice is because the latter

option would most likely cause issues since it

does not specify definite values (i.e., there is no

end number).

Attached is a copy of the final application we

plan to file today. We will send you the

confirmation documents after it has been filed.

Thanks again for all your help, .

Vickie

Victoria C. Cook Patent Agent Quarles & Brady LLP

P: (602) 230-5512

F: (602) 229-5690

Victoria.Cook@Quarles.com

A96

From: Dennis, Julie - SJHMC

[mailto:Julie.Dennis001@chw.edu]

Sent: Monday, October 24, 2011 11:19 AM To: Cook,

Victoria; Garfield, Robert - SJHMC Cc:

Lecamwasam, Manoja Ratnayake - SJHMC

Subject: FW: Draft of PCT Appbcation for Uterine

Stimulator Electrode Array Devices and Connectors

(CHW 102.2/Q&B 128464.00011)

Importance: High

I’m forwarding Dr. Maner’s comments/mark up

for your review. I’ll let him know your email

addresses for future emails. Thank you!

Julie Dennis, Administrator

Intellectual Property Department

Manoja Lecamwasam, PhD, MBA, Director

Catholic Healthcare West

3030 North Central Avenue, Suite 1402 Phoenix,

Arizona 85012

Phone 602-406-51651 Fax 602-798*0584

e*mail juhe.dennis001@chw.edu

NOTICE: This communication (including any

attachments) may contain privileged or

confidential information intended for a specific

individual and purpose. If you are not the

intended recipient, you should delete this

communication and/or shred the materials and

any attachments and are hereby notified that any

disclosure, copying or distribution of this

A97

communication, or the taking of any action based

on it, is strictly prohibited. Thank you.

From- william maner

[mailto:williammaner@hotmail.com]

Sent: Friday, October 21, 2011 7:21 PM

To: Dennis, Julie SJHMC; Lecamwasam, Manoja

Ratnayake - SJHMC

Subject: RE: Draft of PCT Application for Uterine

Stimulator Electrode Array Devices and Connectors

(CHW 102.2/Q&B 128464.00011)

Importance: High

Manoja and Julie:

Attached are my suggested revisions to the

electrodes PCT application (using "tracked

changes" in MSWord). The Figures .pdf file looks

fine, except that in Figure 16B, "72" needs to be

changed to "71" in order to match the text in the

word document in paragraph [0083].

Ideally, all of the devices 54, 64, 72, and 76 should

have been shown with a cable connector 68 in the

Figures. Unfortunately, this was only actually

explicitly depicted for device 64, and only in Figure

15A. I tried to deal with this omission as simply as

possible with an additional description in paragraph

[00100], See if you think that does the trick or if all

of these Figures will need to be modified to explicitly

show the cable connector 68.

A98

Also, we need to insert some fdaims about the use of

medications on the electrodes for each device (I

have indicated in the claims section where each

such

might go). This is all based on the

description that we have existing in paragraph

[0098].

Finally, we may want to add an equivalent method

claim to match all of the device claims. Your call.

Let me know if these changes are OK or if they

cause other problems by their inclusion, and

together we can work out the best solution.

Thanks,

Subject: RE: Draft of PCT Application for Uterine

Stimulator Electrode Array Devices and Connectors

(CHW 102.2/Q&B 128464.00011) Date: Fri, 21 Oct

2011 10:24:57 -0700

From: Julie.Dennis001@chw.edu To:

williammaner@hotmail.com

Yes, please review and redline any comments or

changes and send back to Manoja and cc me. It

has not been submitted to the patent office as of

yet. Thank you!

Julie Dennis, Administrator

Intellectual Property Department

Manoja Lecamwasam, PhD, MBA, Director

A99

Catholic Healthcare West

3030 North Central Avenue, Suite 1402 Phoenix,

Arizona 85012

Phone 602-406-51651 Fax 602-798 0584 *

e-mail julie.dennis001@chw.edu .

1 •

NOTICE^ This communication (including any

attachments).may contain privileged or

confidential information intended for a specific

individual and purpose. If you are not the

intended recipient, you should delete this

communication and/or shred the materials and

any attachments and are hereby notified that any

disclosure, copying or distribution of this

communication, or the taking of any action based

on it, is strictly prohibited. Thank you.

From: william maner

[mailto:williammaner@hotmail.com]

Sent: Friday, October 21, 2011 10:17 AM'

To: Dennis, Julie - SJHMC

Subject: RE: Draft of PCT Application for Uterine

Stimulator Electrode Array Devices and Connectors

(CHW 102.2/Q&B 128464.00011)

Ok, Julie - thank you. But please tell me * is the

plan still to have me review this material before it

is submitted or has it already gone out to the

patent office? Bo

. >

A100

Subject: FW: Draft of PCT Application for Uterine

Stimulator Electrode Array Devices and Connectors

(CHW 102.2/Q&B 128464.00011) Date: Fri, 21 Oct

2011 09:26:58 -0700

From: Julie.Dennis001@chw.edu To:

WilliamManer@hotmail.com

Hi Dr. Maner,

I let Vicki know your new email address, but not

before she sent this out...I didn’t get to her in time!

My apologies. Have a good weekend.

Julie Dennis, Administrator

Intellectual Property Department

Manoja Lecamwasam, PhD, MBA, Director

Catholic Healthcare West

3030 North Central Avenue, Suite 1402

Phoenix, Arizona 85012

Phone 602-406-51651 Fax 602-798-0584

e-mail juhe.dennis001@chw.edu

NOTICE: This communication (including any

attachments) may contain privileged or

confidential information intended for a specific

individual and purpose. If you are not the

intended recipient, you should delete this

communication and/or shred the materials and

any attachments and are hereby notified that any

A101

disclosure, copying or distribution of this

communication, or the taking of any action based

on it, is strictly prohibited. Thank you.

From- Cook, Victoria [mail toVictoria.Cook@auarles.com]

Sent- Thursday, October 20, 2011 4*22 PM

To: Garfield, Robert - SJHMC;

’William.Manei^chw.edu’

Cc: Lecamwasam, Manoja Ratnayake - SJHMC;

Dennis, Julie - SJHMC

Subject: Draft of PCT Application for Uterine

Stimulator Electrode Array Devices and Connectors

(CHW 102.2/Q&B 128464.00011)

Hi Bob and Bo,

Attached please find a draft of the PfcT application

related to the electrode arrays and connector device

for the to the uterine stimulator system. The PCT

application is very similar to the provisional

application we filed last year, with the addition of

claims, an abstract, and new wording in the

summary specifically related to the independent

claims. The application includes five independent

claims to cover the balloon electrode array device,

the mesh electrode array device, the electrode probe

device, the ring electrode array device, and the '

connector device.

As you know, we must file this application by next

Thursday. October 27th. Please review the

application and let me know if you would like any

changes made or have any, questions or concerns;

-1

A102

•

Thank you,

Vickie

Victoria C. Cook Patent Agent Quarles & Brady LLP

One Renaissance Square

Two North Central Avenue Phoenix, Arizona 850042391 www.quarles.com

P: (602) 230-5512

F: (602) 229-5690

Victoria.Cook@auarles.com

This electronic mail transmission and any

attachments are confidential and may be

privileged. They should be read or retained only

by the intended recipient. If you have received

this transmission in error, please notify the

sender immediately and delete the transmission

from your system. In addition, in order to comply

with Treasury Circular 230, we are required to

inform you that unless we have specifically

stated to the contrary in writing, any advice we

provide in this email or any attachment

concerning federal tax issues or submissions is

not intended or written to be used, and cannot be

used, to avoid federal taxpenalties.

This electronic mail transmission and any

attachments are confidential and may be

privileged. They should be read or retained only

by the intended recipient. If you have received

this transmission in error, please notify the

sender immediately and delete the transmission

A103

from your system. In addition, in order to comply

with Treasury Circular 230, we are requiredto

inform you that unless we have specifically

stated to the contrary in writing, any advice we

provide in this email or any attachment

concerning federal tax issues or submissions is

not intended or written to be used, and cannot be

used, to avoid federal taxpenalties.

This electronic mail transmission and any

attachments are confidential and may be

privileged. They should be read or retained only

by the intended recipient. If you have received

this transmission in error, please notify the

sender immediately and delete the transmission

from your system. In addition, in order to comply

with Treasury Circular 230, we are requiredto '

inform you that unless we have specifically

stated to the contrary in writing, any advicewe ’

provide in this email or any attachment

concerning federal tax issues or submissions is

not intended or written to be used, and cannot be

used, to avoid federal taxpenalties.

A104

PETITIONER WORKING ON BEHALF OF

EMPLOYER BEYOND OCTOBER 1, 2011 - B

RE- William Maner ongoing relationship with CHW

Lecamwasam, Manoja Ratnayake' SJHMC

<Manoja.Lecamwasam@chw.edu>

Tue 11/29/2011 4:31AM

To: william maner <williammaner@hotmail.com>;

Cc: Dennis, Julie - SJHMC

<Julie.Dennis001@chw.edu>;

Bo,

We received the information and we forwarded the

info to patent counsel today. Thanks much for all the

work you put into the documentation. Hope you had

a great holiday.

From: william maner [williammaner@hotmail.com]

Sent: Monday, November 28, 2011 5:05 PM

To: Lecamwasam, Manoja Ratnayake - SJHMC

Subject: RE: William Maner ongoing relationship

with CHW IP

Manoja - all of the invention/patent/inventive steps

materials were sent to you by certified mail on

11/18/11 to the following address: CHWIP - Manoja

Lecamwasam

222 West Thomas Rd, Suite 406

A105

Phoenix, AZ 85013

Please let me know, when they reach you. Thanks

> From- Manoja.Lecamwasam@chw.edu

> To: williammaner@hotmail.com

> GC: Julie.Dennis001@chw.edu;.

jack.cook@quarles.com

> Date: Tue, 15 Nov 2011 08:16:04 -0700

> Subject: RE: William Maner ongoing relationship

with CHW IP

> Sounds great Bo * that will be very helpful. *li.

> Hope you are doing welL

>Manoja

> From: william maner

[williamtnaner@hotmail.com]

> Sent: Monday, November 14, 2011 5:34 PM

> To: Lecamwasam, Manoja Ratnayake - SJHMC

> Cc: Dennis, Julie - SJHMC; jack.cook@quarles.com

> Subject: RE: William Maner ongoing relationship

with CHW IP

> Hi, Manoja.

> Yes, certainly/ give me a few days and 1 will

organize for you a rather substantial compilation,

with supporting documents.

A106

> Thanks,

> Bo

> From- Manoja.Lecamwasam@chw.edu

> To- wilIiammaner@hotmail.com

> CC: Julie.Dennis001@chw.edu;

Jack.Cook@quarles.com

> Date: Mon, 14 Nov 2011 16=10:40 -0700

> Subject: RE: William Maner ongoing relationship

with CHWIP

> HiBo,

> Thank you for your email below. We are currently

in the process of assessing the inventive contribution

in the development of the electrical cervical ripening

invention. As such, can you please forward me a

write up of your part in the conception and

reduction to practice of such invention?

> Hope you are keeping well.

> Best,

> Manoja

> Manoja Ratnayake Lecamwasam PhD, MBA

> Director, CHW Intellectual Property

> Catholic Healthcare West

> 3030 N. Central Ave

A107

> Suite 1402

> Phoenix, AZ 85012

>Tel: 602 406 3921

> Cell-480 686 0386

> RightFax- 602*798-0543

> Email- manoja.lecamwasam@chw.edu

> NOTICE: This communication (including any

attachments) may contain privileged or confidential

information intended for a specific individual and

purpose. If you are not the intended recipient, you

should delete this communication and/or shred the

materials and any attachments and are hereby

notified that any disclosure, copying or distribution

of this communication, or the taking of any action

based on it, is strictly prohibited. Thank you. .

> From- william maner

[mailto-williammanei@hotmail.com1

> Sent: Friday, October 21, 2011 9:16 PM

> To: sharon lewis; Lecamwasam, Manoja

Ratnayake - SJHMC

> Subject: William Maner ongoing relationship with

CHWIP

> Importance: High

> Dear Sharon andManoja:

> I am not sure if you have been made aware yet,

but Bob Garfield and I are presently at odds over

some CHW issues not related to IP. I realize that

this may put you in a somewhat difficult position. As

A108

one of the co-inventors on a number of devices

through CHW, I only ask for your assurances that I

will not be excluded from any patent submissions

based on Bob’s request or demand. He has no more

right to the patents than any of the other co

inventors.

> Please copy me on any filings, and as usual, I am

available to assist you with technical markups on

any patents for which I have been listed as a co

inventor if you need me. I am particularly concerned

about the provisional (and ultimately PCT and

utility filings) on the new electrical cervical ripening

patent. My name should be associated with that

invention. I sent you my inventor signature by

certified mail for that one about 3 months ago, but I

include it here again, as well as the original

communication with Bob about the invention

disclosure, for our mutual records.

> Also, my present mailing address is the following:

>PO Box 781

> Galveston, TX 77553

> And phone number: (409) 789-8305

> Let me know if you have any concerns or

questions.

> Thanks and best regards,

> William ”Bo" Maner

> This electronic mail transmission and any

attachments are confidential and are privileged.

They should be read or retained only by the intended

A109

recipient. If you have received this transmission in

error, please notify the sender immediately and

delete the transmission from your system.

A110

Policy Guidance on Employer Liability under Title

VII for Sexual Favoritism

N-915.048

1/12/90

1. Subject- Policy Guidance on Employer Liability

under Title VII for Sexual Favoritism.

2. Purpose- This policy document is intended to

provide guidance on the extent to which an

employer should be held liable for discriminating

against individuals who are qualified for but are

denied an employment opportunity or benefit,

where the individual who is granted the

opportunity or benefit received it because that

person submitted to sexual advances or requests.

3. Effective Date- On receipt.

4. Expiration Date- As an exception to EEOC Order

205.001, Appendix B, Attachment 4, § a(5), this

Notice will remain in effect until rescinded or

superseded.

5. Originator: Title VII/EPA Division, Office of

Legal Counsel.

6. Instructions- File after Section 615 of Volume II

of the Compliance Manual (Harassment).

7. Subject Matter-

Alll

Background

The Commission and the courts have declared that

sexual harassment violates Section 703 of Title VII.

Mentor Savings Bank v. Vinson, 477 U.S. 57, 64,

40 EPD K 31,159 (1986); EEOC's Guidelines on

Discrimination Because of Sex, 29 C.F.R. §

1604.11(a). EEOC's Guidelines define two kinds of

sexual harassment- "quid pro quo," in which

"submission to or rejection of [unwelcome sexual]

conduct by an individual is used as the basis for

employment decisions affecting such individual,"

and "hostile environment," in which unwelcome

sexual conduct "unreasonably interferes] with an

individual's job performance" or creates an

"intimidating, hostile or offensive working

environment." 29 C.F.R. §§ 1604.11(a)(2) and'(3).

Subsection (g) of EEOC's Guidelines provides^

where employment opportunities or benefits

are granted because of an individual's

submission to the employer's sexual

advances or requests for sexual favors, the

employer may be held liable for unlawful sex

discrimination against other persons who

were qualified for but were denied that

employment opportunity or benefit.

As discussed below, sexual favoritism in the

workplace which adversely affects the employment

opportunities of third parties may take the form of

implicit "quid pro quo" harassment and/or "hostile

work environment" harassment.

A112

Discussion

A. Isolated Instances of Favoritism Towards a

"Paramour” Not Prohibited

Not all types of sexual favoritism violate Title VII .1

It is the Commission's position that Title VII does

not prohibit isolated instances of preferential

treatment based upon consensual romantic

relationships. An isolated instance of favoritism

toward a "paramour" (or a spouse, or a friend) may

be unfair, but it does not discriminate against

women or men in violation of Title VII, since both

are disadvantaged for reasons other than their

genders 2 A female charging party who is denied an

employment benefit because of such sexual

favoritism would not have been treated more

favorably had she been a man nor, conversely, was

she treated less favorably because she was a

woman. See Miller v. Aluminum Co. ofAmerica,

679 F. Supp. 495, 47 EPD H 38,112 (W.D. Pa.), affd

mem., 856 F.2d 184 (3d Cir. 1988)4 DeCintio v.

Westchester County Medical Center, 807 F.2d 304,

42 EPD H 36,785 (2d Cir. 1986), cert, denied, 108 S.

Ct. 89, 44 EPD H 37,425 (1987)4 But see King. v.

Palmer, 778 F.2d 878, 39 EPD H 35,808, reh'g

denied, 39 EPD % 36,036 (D.C. Cir. 1985)4

B. Favoritism Based Upon Coerced Sexual Conduct

May Constitute Quid Pro Quo Harassment

If a female employee^ is coerced into submitting to

unwelcome sexual advances in return for a job

A113

benefit, other female employees who were qualified

for but were denied the benefit may be able to

establish that sex was generally made a condition .

for receiving the benefit2 Thus; in order for a

woman to have obtained the job benefit at issue, it

would have been necessary to grant sexual favors, a

condition that would not have been imposed on

men. This is substantially the same as a traditional

sexual harassment charge alleging that sexual

favors were implicitly demanded as a "quid pro

quo" in return for job benefits.^ For example, in

Toscano v. Nimmo, 570 F. Supp. 1197, 1199:1201,

32 EPD H 33,848 (D. Del. 1983), the court found a

violation of Title VII based on the fact that the

granting of sexual favors was a condition for

promotion. Although the individual who was

granted preferential treatment was engaged in a

consensual affair with her supervisor, there was

evidence that the supervisor made telephone calls

to proposition several female employees at home,

phoned employees at work to describe his supposed

sexual encounters with female employees under his .

supervision, and engaged in suggestive behavior at

work.S

’

Many times, a third party female will not be able to

establish that sex was generally made a condition

for the benefit in question. For example, a

supervisor may have been interested in only one

woman and, thus, have coerced only her.

Nevertheless, in such a case, both women and men

who were qualified for but were denied the benefit

would have standing to challenge the favoritism on

the basis that they were injured as a result of the

A114

discrimination leveled against the woman who was

coerced. See EEOC amicus brief (filed Sept. 30,

1988) in Clayton v. White Hall School District, 875

F.2d 676, 50 EPD % 39,048 (8th Cir. 1989), in which

the Commission argued that a white employee had

standing under Title VII to challenge her

employer’s decision to deny her an employment

benefit pursuant to an employment policy which it

allegedly enforced for the purpose of denying the

same benefit to a black employee; although the

plaintiff was not the object of racial discrimination,

she was injured as a result of the race

discrimination practiced against the black

employee.^ See also DeCintio v. Westchester

County Medical Center, 807 F.2d at 307-08 (by

implication) (male plaintiffs' claims of favoritism

rejected not because of lack of standing but because

the woman who received the favorable treatment

was not coerced into submitting to sexual

advances); EEOC v. T.I.M.E.-D.C. Freight, Inc., 659

F.2d 690 n.2, 27 EPD % 32,202 (5th Cir. 1981)

(white plaintiffs could challenge discrimination

against blacks provided that they could establish a

personal injury); Allen v. American Home Foods,

Inc., 644 F. Supp. 1553, 42 EPD H 36,911 (N.D. Ind.

1986) (males who lost their jobs due to their

employer’s discrimination against female co

workers suffered an injury as a result of the

discrimination, and therefore had standing to sue

under Title VII).

C. Widespread Favoritism May Constitute Hostile

Environment Harassment

A115

If favoritism based upon the granting of sexual

favors is widespread in a workplace, both male and

female colleagues who do not welcome this conduct

can establish! a hostile work environment in

violation of Title VII regardless of whether any ;

objectionable conduct is directed at them and

regardless of whether those who were granted

favorable treatment willingly bestowed the sexual

favors. In these circumstances, a message is

implicitly conveyed that the managers view women

as "sexual playthings," thereby creating an

atmosphere that is demeaning to women. Both men

and women who find this offensive can establish a

violation if the conduct is "sufficiently severe or

pervasive 'to alter the conditions of [their]

employment and create an abusive working

environment.'” Vinson, 477 U.S. at 67 [quoting '

Henson v. City ofDundee; 682 F.2d 897, 904, 29 ■

EPD f 32,993 (llth Cir. 1982)].ii An analogy can

be made to a situation in which supervisors in an

office regularly make racial, ethnic or sexual jokes.

Even if the targets of the humor "play along" and in

no way display that they object, co*workers of any

race, national origin or sex can claim that this

conduct, which communicates a bias against *

protected class members, creates a hostile work

environment for them. See Rogers v. EEOC, 454 "

F.2d 234, 4 EPD 1 7597 (5th Cir. 1971), cert,

denied, 406 U.S. 957, 4 EPD H 7838 (1972)

(discriminatory treatment of medical patients *

created hostile work environment for plaintiff

employee); Commission Decision No. 71*969, CCH

EEOC Decisions (1973) 1 6193 (supervisor's

habitual use of racial epithet in referring to Black

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employees created discriminatory work

environment for White Charging Party);

Compliance Manual Volume II, Section 615.3(a)(3)

Examples (l) and (2) (sexual harassment of females

may create hostile work environment for other

male and female employees).

Managers who engage in widespread sexual

favoritism may also communicate a message that

the way for women to get ahead in the workplace is

by engaging in sexual conduct or that sexual

solicitations are a prerequisite to their fair

treatment.!^ This can form the basis of an implicit

"quid pro quo" harassment claim for female

employees, as well as a hostile environment claim

for both women and men who find this offensive M

The case of Broderick v. Ruder; 685 F. Supp. 1269,

46 EPD f 37,963 (D.D.C. 1988) illustrates how

widespread sexual favoritism can be found to

violate Title VII. In Brodericks, staff attorney at

the Securities and Exchange Commission alleged

that two of her supervisors had engaged in sexual

relationships with two secretaries who received

promotions, cash awards, and other job benefits.

Another of her supervisors allegedly promoted the

career of a staff attorney with whom he socialized

extensively and to whom he was noticeably

attracted. In addition, there were isolated instances

of sexual harassment directed at the plaintiff

herself, including an incident in which her

supervisor became drunk at an office party, untied

the plaintiff's sweater, and kissed her. The court

found that the conduct of these supervisors "created

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an atmosphere of hostile work environment"

offensive to the plaintiff and several other '

witnesses. It further stated that the supervisors'

conduct in bestowing preferential treatment upon

those who submitted to their sexual advances

undermined the plaintiffs motivation and work

performance and deprived her and other female

employees of promotions and job opportunities.

Broderick; 685 F. Supp. at 1278. While the court in

Broderick grounded its ruling on the hostile

environment theory, it is the Commission's position

that these facts could also support an implicit "quid

pro quo" harassment claim since the managers, by

their conduct, communicated a message to all

female employees in the office that job benefits

would foe awarded to those who participated in

sexual conduct. See also Spencer v. General

Electric, 697 F. Supp. 204 (E.D. Va. 1988).^

Example 1 - Charging Party (CP) alleges that she

lost a promotion for which she was qualified

because the co*worker who obtained the promotion

was engaged in a sexual relationship with their

supervisor. EEOC's investigation discloses that the

relationship at issue was consensual and that the

supervisor had never subjected CP's co-worker or

any other employees to unwelcome sexual

advances. The Commission would find ho violation

of Title VII in these circumstances, because men

and women were equally disadvantaged by the

supervisor’s conduct for reasons other than their

genders.

Even if CP is genuinely offended by the supervisor's

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conduct, she has no Title VII claim.

Example 2 - Same as above, except the relationship

at issue was not consensual. Instead, CP’s

supervisor regularly harassed the co-worker in

front of other employees, demanded sexual favors

as a condition for her promotion, and then audibly

boasted about his "conquest.” In these

circumstances, CP may be able to establish a

violation of Title VII by showing that in order to

have obtained the promotion, it would have been

necessary to grant sexual favors. In addition, she

and other qualified men and women who were

denied the promotion would have standing to

challenge the favoritism on the basis that they

were injured as a result of the discrimination

levelled against their co-worker.

Example 3 - Same as Example 1, except CP's

supervisor and other management personnel

regularly solicited sexual favors from subordinate

employees and offered job opportunities to those

who complied. Some of those employees willingly

consented to the sexual requests and in turn

received promotions and awards. Others consented

because they recognized that their opportunities for

advancement would otherwise be limited. CP, who

did not welcome this conduct, was not approached

for sexual favors. However, she and other female

and male coworkers may be able to establish that

the conduct created a hostile work environment.

She can also claim that by their conduct, the

managers communicated to all female employees

that they can obtain job benefits only by

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acquiescing in sexual conduct.

1/12/90

Date

Approved* /s/

Clarence Thomas

Chairman

1 The material in § 615 of the Compliance Manual

on subsection (g) of the Guidelines (at pp. 615-10

and 11) is superseded by this Policy Guidance.

2 See Benzies v. Illinois Dept, ofMental Health, 810

F.2d 146, 148, 39 EPD H 35,870 (7th Cir.), cert,

denied\ 107 S. Ct. 3231 (1987) (denial of promotion

to woman is not violation if motivated by personal

or political favoritism or a grudge).' Bellissimo v.

Westinghouse Electric Corp., 764 F.2d 175, 180, 37

EPD If 35,315 (3d Cir. 1985), cert, denied, 475 U.S.

1035, 39 EPD 11 35,875 (1986) (discharge of female

employee violates Title VII only if it is done on a

basis that would not result in the discharge of a

male employee)

3 The plaintiff in Miller alleged that her supervisor

treated her less favorably than her co-worker

because the supervisor knew that the co-worker

was engaged in a romantic relationship with the

plant manager. Miller, 679 F. Supp. at 500-01. The

lower court held that in order to establish a Title

VII claim, the plaintiff would have to show that her

employer would have or did treat males differently.

Id. at 501. Since the plaintiffs male co-workers

shared with her the same disadvantage relative to

the co worker who was engaged in the affair with

the manager, the plaintiff could not show that she

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was treated differently than males. Id. On appeal

to the Third Circuit, the Commission filed an

amicus brief supporting the ruling of the district

court on the basis that favoritism toward a female

employee because of a consensual romantic

relationship with a male supervisor is not sex

discrimination against other female employees

within the meaning of Title VII. The Court of

Appeals summarily affirmed.

4 In DeCintio, seven male respiratory therapists

claimed that they were unlawfully disqualified for a

promotion that went to a woman who was engaged

in a romantic relationship with the department

administrator. The court held that the department

administrator's conduct, though unfair, did not

violate Title VII. DeCintio, 807 F.2d at 308. The

court reasoned that the prohibition of sex

discrimination in Title VII refers to discrimination

on the basis of one's sex, not on the basis of one's

sexual affiliations; the therapists’ claims were not

cognizable under the Act since they were denied

promotion because the administrator preferred his

"paramour," rather than because of their status as

males. Id. The court distinguished EEOC’s

Guidelines by stating that they address the

granting of employment benefits because of an

individual’s "submission’’ to sexual advances or

requests, and the word "submission" connotes a

lack of consent. Since the department

administrator did not force anyone to submit to

sexual advances in order to win promotion, his

conduct was not within the purview of the

Guidelines. Id. at 307-08. Accord, Handley v.

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Phillips, 715 F. Supp. 657, 675 (M.D. Pa. 1989).

5 In King, the plaintiff claimed she had been denied

a promotion that went to a less qualified co-worker

who was engaged in an intimate relationship with

the selecting official. Although the issue of whether

Title VTI applied to preferential treatment was not

raised on appeal, the court stated that it agreed

with the lower court's conclusion that the case was

within the purview of Title VII. King,; 778 F.2d at

880. The court ruled in favor of the plaintiff on the

basis of its finding that her co-worker was

promoted because of the sexual relationship. Id. at

882. In a concurring opinion to the decision denying

a suggestion for rehearing en banc, it was

emphasized that the issue of whether Title VII

applied to the facts of the case was not raised on

appeal or in the petition for rehearing. 39 EPD H

36,036.

6 Although this Policy Guidance uses female

pronouns to refer to individuals who are treated

favorably because they engage in sexual conduct, it

also covers situations in which men are granted

favorable treatment based on sexual conduct.

7 The employer would also be liable for "quid pro

quo" harassment with regard to the individual who

was coerced into submitting to the advances.

8 See Section 1604.11(1) of EEOC's Guidelines on

Sexual Harassment, which states that a violation

will be found when submission to unwelcome

sexual conduct is made "either explicitly or

implicitly" a term or condition of an individual's

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employment.

9 See also DeCintio v. Westchester County Medical

Center, 807 F.2d at 307, in which the court stated

that the claim in Toscano was premised on the

coercive nature of the employer's acts, and

therefore that the case lent no support to the

contention that a voluntary amorous involvement

may form the basis of a Title VII claim.

10 In Clayton, the court ruled that the plaintiff did

have standing, but it based that standing on her

allegation of a hostile work environment. 875 F.2d

at 679.

11 See EEOC's Policy Guidance on Current Issues of

Sexual Harassment (10/25/88) at 13-18 for

standards governing the determination of whether

a work environment is "hostile". That Policy

Guidance makes clear that the Commission will

evaluate the totality of circumstances on a case-by

case basis, employing the objective perspective of a

"reasonable person" in the context in which the

challenged conduct took place. Some factors that

could be considered in determining whether a

hostile environment is established are the number

of incidents of favoritism, the egregiousness of the

incidents, and whether or not other employees in

the office were made aware of the conduct.

12 See, e.g., Priest v. Rotary, 634 F. Supp. 571, 39

EPD H 35,897 (N.D. Cal. 1986), in which the

defendant gave preferential treatment to his

consensual sexual partner and to those female

employees who reacted favorably to his sexual

A12B

advances and other conduct of a sexual nature, and

he disadvantaged those employees, including the

plaintiff who reacted unfavorably to his conduct.

The court found a violation of Title VII in part

because the defendant's conduct implied that job

benefits would be conditioned on an employee's

good-natured endurance of his sexually-charged

conduct or sexual advances. Id. at 581.

13 In Miller v. Aluminum Co. ofAmerica, 679 F.

Supp. at 501* 502, the court rejected a claim that

sexual favoritism based on a consensual

relationship can create a hostile environment for

others in the workplace. The court found that the

favoritism itself did not violate Title VII since it

was voluntary, and that "[hlostile behavior that

does not bespeak an unlawful motive cannot

support a hostile work environment claim." Id. at

502. However, it is the Commission's position that

had the sexual favoritism been widespread, the fact

that it was exclusively voluntary and consensual

would not have defeated a claim that it created a

hostile work environment for other people in the

workplace. As indicated above at n.11, the question

of whether actions complained of are sufficiently

widespread or egregious to constitute a hostile

environment must be decided case-by-case.

14 In Spencer, the supervisor of an office engaged in

virtually daily horseplay of a sexual nature with

female subordinates. This behavior included sitting

on their laps, touching them in an intimate

manner, and making lewd comments. The

subordinates joined in and generally found the

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horseplay funny and inoffensive. With the

exception of one incident (which may have been

time-barred and was not critical to the court’s

decision), none of the horseplay was directed at the

plaintiff. The supervisor additionally engaged in

consensual relations with at least two of his

subordinates. The court found that the supervisor's

conduct would have interfered with the work

performance and would have seriously affected the

psychological well-being of a reasonable employee,

and on that basis it found a violation of Title VII.

697 F. Supp. at 218. Although Spencer did not

involve sexual favoritism, the case supports the

proposition that pervasive sexual conduct can

create a hostile work environment for those who

find it offensive even if he targets of the conduct

welcome it and even if no sexual conduct is directed

at the persons bringing the claim.

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William L. Maner

PO Box 781

Galveston, Texas 77553

Phone: 409-965 7657

E-Mail: WilliamManer@Hotmail.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.