Petition for Writ of Certiorari — Ronald Hittle, Petitioner v. City of Stockton, California, et al.

Supreme Court briefOct 15, 2024

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No. __-___

IN THE

Supreme Court of the United States

————

RONALD HITTLE,

Petitioner,

CITY OF STOCKTON, CALIFORNIA; ROBERT DEIS; LAURIE

MONTES,

Respondents.

————

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

KELLY J. SHACKELFORD

JEFFREY C. MATEER

HIRAM S. SASSER, III

DAVID J. HACKER

STEPHANIE N. TAUB

FIRST LIBERTY INSTITUTE

2001 W. Plano Pkwy.

Ste. 1600

Plano, TX 75075

(972) 941-4444

KAYLA A. TONEY

FIRST LIBERTY INSTITUTE

1331 Penn. Ave., NW

Washington, D.C. 20004

(202) 921-4105

AARON M. STREETT

Counsel of Record

J. MARK LITTLE

ELISABETH C. BUTLER

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77002

(713) 229-1234

aaron.streett@bakerbotts.com

ALAN J. REINACH

JONATHON CHERNE

CHURCH STATE COUNCIL

2686 Townsgate Road

Westlake Village, CA 91361

(805) 413-7398

Counsel for Petitioner Ronald Hittle

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

1. Whether this Court should overrule McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).

2. Whether step three of the McDonnell Douglas burden-shifting framework requires a plaintiff to disprove the

employer’s proffered reason for the adverse employment

action, when the text of Title VII and Bostock v. Clayton

County, 590 U.S. 644 (2020), provide that an action may

have more than one but-for cause or motivating factor.

PARTIES TO THE PROCEEDINGS BELOW

Petitioner Ronald Hittle was plaintiff in the district

court and plaintiff-appellant in the court of appeals.

Respondents are the City of Stockton, California; Robert Deis; and Laurie Montes. Respondents were defendants in the district court and defendants-appellees in the

court of appeals.

iii

RELATED PROCEEDINGS

This case arises from and is related to the following

proceedings in the U.S. District Court for the Eastern District of California, the U.S. Court of Appeals for the Ninth

Circuit, and this Court:

 Hittle v. City of Stockton, No. 2:12-CV-00766-TLNKJN (E.D. Cal.) (Mar. 2, 2022) (summary judgment

in favor of the City)

 Hittle v. City of Stockton, No. 22-15485 (9th Cir.

2023) (Aug. 4, 2023) (judgment affirming summary

judgment in favor of the City)

 Hittle v. City of Stockton, No. 22-15485 (9th Cir.

2023) (May 17, 2024) (amended opinion)

 Hittle v. City of Stockton, No. 24A145 (U.S.) (Aug.

7, 2024) (order granting application of Ronald Hittle to extend time to file petition for writ of certiorari)

There are no other proceedings in state or federal trial

or appellate courts directly related to this case within the

meaning of this Court’s Rule 14.1(b)(iii).

TABLE OF CONTENTS

Page

Questions Presented .......................................................... i

Parties to the Proceedings Below.................................... ii

Related Proceedings ........................................................ iii

Opinions Below .................................................................. 1

Statement of Jurisdiction ................................................. 1

Statutory Provisions Involved ......................................... 2

Preliminary Statement ..................................................... 2

Statement ........................................................................... 4

Background ......................................................... 4

II.

Proceedings Below ............................................. 8

A. Proceedings in the district court ................ 8

B. Proceedings in the court of appeals............ 8

Reasons for Granting the Petition................................. 10

McDonnell

Douglas

Should

Overruled Because It Creates An

Artificial, Judge-Made Test That Is

Unworkable And Contrary To The

Statute ............................................................... 11

II.

Step Three Of The McDonnell Douglas

Framework Has Created Confusion In

The Courts Of Appeals .................................... 16

A. There is a 6-6 split among the courts

of appeals regarding whether a

plaintiff

must

disprove

the

employer’s proffered reasons at step

three of the McDonnell Douglas

framework ................................................... 16

TABLE OF CONTENTS—Continued

Page

B. There is an additional split

regarding how step three is applied

in motivating-factor cases.......................... 22

III. The Ninth Circuit Reached The Wrong

Result Because Of Its Erroneous View

Of McDonnell Douglas .................................... 25

A. The Ninth Circuit improperly

required that Chief Hittle disprove

the City’s proffered reasons for his

termination .................................................. 26

B. The

Ninth

Circuit

credited

illegitimate reasons cited by the

City ............................................................... 28

C. The Ninth Circuit abandoned its

obligation to read the facts in the

light most favorable to Chief Hittle.......... 30

IV. This Case Is An Excellent Vehicle To

Address The Important Questions

Presented .......................................................... 31

A. The petition raises important issues ........ 31

B. The petition squarely presents the

issue in a clean vehicle ............................... 32

Conclusion ........................................................................ 32

Appendix A – Amended Opinion of the United

States Court of Appeals for the Ninth Circuit

(May 17, 2024) .................................................................. 1a

Appendix B – Opinion of the United States Court

of Appeals for the Ninth Circuit (August 4,

2023) ................................................................................ 73a

TABLE OF CONTENTS—Continued

Page

Appendix C – Opinion of the United States

District Court for the Eastern District of

California (March 1, 2022) .......................................... 105a

vii

TABLE OF AUTHORITIES

Page(s)

CASES

Akridge v. Alfa Ins. Cos.,

93 F.4th 1181 (11th Cir. 2024) ..................................... 17

Anderson v. St.,

104 F.4th 646 (7th Cir. 2024) ....................................... 17

Banks v. Deere,

829 F.3d 661 (8th Cir. 2016) ......................................... 24

Bart v. Golub Corp.,

96 F.4th 566 (2d Cir. 2024) ......................................19, 24

Bostock v. Clayton Cnty.,

590 U.S. 644 (2020) .................. 3, 4, 10, 15, 17, 18, 27, 28

Brady v. Off. of Sergeant at Arms,

520 F.3d 490 (D.C. Cir. 2008) ........................... 12, 15, 20

Brandt v. Fitzpatrick,

957 F.3d 67 (1st Cir. 2020) ........................................... 23

Briggs v. Univ. of Cincinnati,

11 F.4th 498 (6th Cir. 2021) ......................................... 17

Chuang v. Univ. of Cal. Davis, Bd. of Trs.,

225 F.3d 1115 (9th Cir. 2000) ....................................... 10

Coleman v. Donahoe,

667 F.3d 835 (7th Cir. 2012) ......................................... 14

viii

TABLE OF AUTHORITIES—Continued

Page

Comcast Corp. v. Nat’l Ass’n of African Am.-Owned

Media,

589 U.S. 327 (2020) ....................................................... 23

Crawford v. Metro. Gov’t of Nashville & Davidson Cnty.,

555 U.S. 271 (2009) ....................................................... 18

Curley v. City of North Las Vegas,

772 F.3d 629 (9th Cir. 2014) ....................................21, 22

Desert Palace, Inc. v. Costa,

539 U.S. 90 (2003) ......................................................... 16

Dominguez-Curry v. Nev. Transp. Dep’t,

424 F.3d 1027 (9th Cir. 2005) ....................................... 10

Fonseca v. Sysco Food Servs. of Ariz., Inc.,

374 F.3d 840 (9th Cir. 2004) ......................................... 12

Fye v. Okla. Corp. Comm’n,

516 F.3d 1217 (10th Cir. 2008) ..................................... 24

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001) ......................................................... 29

Griffith v. City of Des Moines,

387 F.3d 733 (8th Cir. 2004) ......................................... 13

Groff v. DeJoy,

600 U.S. 447 (2023) ....................................................... 29

Jones v. Gulf Coast Rest. Grp., Inc.,

8 F.4th 363 (5th Cir. 2021) ........................................... 20

TABLE OF AUTHORITIES—Continued

Page

Kennedy v. Bremerton School District,

597 U.S. 507 (2022) ..................................................28, 29

Knick v. Twp. of Scott,

588 U.S. 180 (2019) ....................................................... 15

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) ..............................................15, 16

Makky v. Chertoff,

541 F.3d 205 (3d Cir. 2008) .......................................... 24

Markley v. U.S. Bank Nat’l Ass’n,

59 F.4th 1072 (10th Cir. 2023) ..................................... 19

Mayorga v. Merdon,

928 F.3d 84 (D.C. Cir. 2019) ........................................ 24

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) ...................... 2-4, 8-19, 21-26, 30, 31

Mobasher v. Bronx Cmty. Coll. of City of New York,

269 F. App’x 71 (2d Cir. 2008) ..................................... 13

O’Connor v. Consol. Coin Caterers Corp.,

517 U.S. 308 (1996) ..................................................11, 12

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989) ............................................ 22, 23, 27

Qin v. Vertex, Inc.,

100 F.4th 458 (3d Cir. 2024) ......................................... 19

TABLE OF AUTHORITIES—Continued

Page

Quigg v. Thomas Cnty. Sch. Dist.,

814 F.3d 1227 (11th Cir. 2016) ..................................... 23

Rachid v. Jack In The Box, Inc.,

376 F.3d 305 (5th Cir. 2004) ......................................... 24

Rios v. Centerra Grp. LLC,

106 F.4th 101 (1st Cir. 2024) ........................................ 17

Runkel v. City of Springfield,

51 F.4th 736 (7th Cir. 2022) ......................................... 24

Sempowich v. Tactile Sys. Tech., Inc.,

19 F.4th 643 (4th Cir. 2021) ......................................... 17

Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248 (1981) ....................................................... 15

Trans World Airlines, Inc. v. Thurston,

469 U.S. 111 (1985) ..................................................11, 16

Tynes v. Fla. Dep’t of Juv. Just.,

88 F.4th 939 (11th Cir. 2023) ............................ 12, 14, 16

U.S. Postal Serv. Bd. of Governors v. Aikens,

460 U.S. 711 (1983) ....................................................... 15

Walton v. Powell,

821 F.3d 1204 (10th Cir. 2016) ................................13, 14

Wells v. Colo. Dep’t of Transp.,

325 F.3d 1205 (10th Cir. 2003) ................................11, 14

TABLE OF AUTHORITIES—Continued

Page

White v. Baxter Healthcare Corp.,

533 F.3d 381 (6th Cir. 2008) ......................................... 23

Williams v. United Parcel Serv., Inc.,

963 F.3d 803 (8th Cir. 2020) ......................................... 20

STATUTES AND RULES

28 U.S.C. § 1254(1) ............................................................... 2

42 U.S.C. § 1981a(c) ............................................................ 11

42 U.S.C. § 2000e-2(a)(1).............................................2, 8, 18

42 U.S.C. § 2000e-2(m) .......................................... 2, 8, 22, 23

Pub. L. No. 102-166, 105 Stat. 1071 (1991)....................... 11

Fed. R. Civ. P. 56 ............................ 3-4, 10, 14-17, 19, 27, 32

ARTICLES

Sperino, Irreconcilable: McDonnell Douglas and

Summary Judgment, 102 N.C. L. Rev. 459

(2024) ................................................................... 11, 15, 19

Sperino, Flying Without a Statutory Basis: Why

McDonnell Douglas Is Not Justified by Any

Statutory Construction Methodology, 43 Hous. L.

Rev. 743 (2006) .............................................................. 11

Tymkovich, The Problem with Pretext, 85 Denv. U. L.

Rev. 503 (2008) .............................................................. 13

xii

TABLE OF AUTHORITIES—Continued

Page

Widiss, Proving Discrimination by the Text, 106 Minn.

L. Rev. 353 (2021) ......................................................... 11

MISCELLANEOUS

Ninth Circuit Jury Instructions Committee, Manual of

Model Jury Instructions for the District Courts of the

Ninth Circuit (2017 ed., last updated June 2024) ..... 13

IN THE

Supreme Court of the United States

————

RONALD HITTLE,

Petitioner,

CITY OF STOCKTON, CALIFORNIA; ROBERT DEIS; LAURIE

MONTES,

Respondents.

————

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

Petitioner Ronald Hittle respectfully petitions for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The court of appeals’ original opinion (App., infra, at

73a-104a) is reported at 76 F.4th 877. The court of appeals’

denial of rehearing en banc and amended opinion (App.,

infra, at 1a-72a) is reported at 101 F.4th 1000. The district

court’s opinion (App., infra, at 105a-136a) is unreported

but is available at 2022 WL 616722.

STATEMENT OF JURISDICTION

The judgment of the court of appeals was filed on August 4, 2023. App., infra, at 73a. A timely petition for rehearing en banc was denied on May 17, 2024. Id. at 5a-6a.

This Court extended the time in which to file a petition for

writ of certiorari to October 14, 2024. Hittle v. City of

Stockton, No. 24A145 (U.S.) (Aug. 7, 2024). This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 2000e-2(a)(1) provides:

It shall be an unlawful employment practice for an

employer * * * to fail or refuse to hire or to discharge any individual, or otherwise to discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin * * *.

42 U.S.C. § 2000e-2(m) provides:

Except as otherwise provided in this subchapter,

an unlawful employment practice is established

when the complaining party demonstrates that

race, color, religion, sex, or national origin was a

motivating factor for any employment practice,

even though other factors also motivated the practice.

PRELIMINARY STATEMENT

Courts analyzing Title VII employment-discrimination

claims employ the McDonnell Douglas burden-shifting

framework at the summary-judgment stage. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under

that three-step, judicially created framework, a plaintiff

must first establish a prima facie case of discrimination.

Id. at 802. If he does so, the burden of production shifts to

the employer to articulate a legitimate, nondiscriminatory

reason for the challenged actions. Ibid. Finally, if the employer meets its burden, the burden shifts back to the

plaintiff to show that the proffered nondiscriminatory reason is pretextual. Id. at 804.

The McDonnell Douglas framework cannot be

squared with the straightforward text of Title VII and

Federal Rule of Civil Procedure 56. Under those provisions, the only question should be whether a plaintiff has

created a genuine factual dispute over whether discrimination was a but-for cause of the adverse employment action. McDonnell Douglas requires courts to divert their

attention from that critical question. Unsurprisingly, that

countertextual approach has plagued this Court and lower

courts for decades, spawning decisions limiting it and confusion applying it. It has rightly been criticized by judges

and scholars alike. The Court should take the opportunity

to overrule this unworkable and egregiously wrong test

without further delay.

At a minimum, the Court should correct one of the

most damaging misapplications of McDonnell Douglas.

There is a split among the courts of appeals regarding

what is required to prove pretext under the third step of

that framework. The First, Fourth, Sixth, Seventh, Ninth,

and Eleventh Circuits hold that a plaintiff must disprove

the employer’s proffered nondiscriminatory reasons for

the adverse employment action. The Second, Third, Fifth,

Eighth, Tenth, and D.C. Circuits hold that disproving the

employer’s proffered reasons is not necessary to establish

pretext, so long as the plaintiff provides other evidence of

intentional discrimination. Only the latter method is consistent with the text of Title VII, Rule 56, and this Court’s

holdings regarding the statute’s but-for causation requirement. Most notably, in Bostock v. Clayton County, 590

U.S. 644 (2020), the Court held that Title VII is satisfied

so long as the plaintiff’s protected trait is one but-for cause

of his termination. Under Bostock, the employer’s proffered reason could be true, yet the plaintiff may still be

able to show that discrimination was also a but-for cause

of the adverse action. The additional requirement grafted

on by the court below and several other circuits—that a

plaintiff must disprove the employer’s proffered

nondiscriminatory reasons—cannot be reconciled with

Bostock’s holding.

Requiring a plaintiff to disprove the employer’s proffered reasons is even more inappropriate under Title VII’s

“motivating factor” provision, which requires a lower

standard of causation than Bostock. Several circuits recognize as much and eliminate or modify McDonnell Douglas’s third step in motivating-factor cases. But the court

below and other circuits hold otherwise.

This case exemplifies how the misuse of McDonnell

Douglas bars juries from considering cases where a material factual dispute exists over whether discrimination was

a but-for cause (or motivating factor) of an adverse employment action. According to his termination notice, petitioner was fired because he “attended a religious event.”

Yet the court of appeals held that this evidence was insufficient to defeat summary judgment on petitioner’s religious-discrimination claim because he could not refute the

respondents’ other alleged reasons for the termination.

Bostock, Title VII, and Rule 56 foreclose such an outcome.

This Court should grant review to overrule McDonnell

Douglas or more closely align its framework with Title

VII’s text, the summary-judgment standard, and Bostock’s causation test.

STATEMENT

I. BACKGROUND

Ronald Hittle served in the City of Stockton, California’s fire department for 24 years, rising to Fire Chief in

2005. App., infra, at 6a.1 He is also a devout Christian.

Ibid. In May 2010, the City received an unsubstantiated,

anonymous letter claiming to be from a fire-department

employee that attacked Chief Hittle as a “religious fanatic

All citations are to the court of appeals’ amended opinion, unless otherwise indicated.

who should not be allowed to continue as the Fire Chief of

Stockton.” Id. at 8a. Roughly one month later, Chief Hittle’s supervisor, Deputy City Manager Laurie Montes, accused Chief Hittle of being part of a “Christian Coalition.”

Ibid. Raising her voice, Montes told Chief Hittle that he

should not “be a part of anything like that as the fire chief,

and [he] should refrain from doing any of those type of activities.” Ibid. She also interrogated Chief Hittle about

his off-duty religious activities. Ibid.

A few months later, Montes directed Chief Hittle to obtain leadership training. Id. at 10a. Chief Hittle searched

for leadership-training programs but initially found no

good options because most events were out of state and

unaffordable for a fire department suffering from budget

cuts. Id. at 11a. During this search, however, Chief Hittle

learned that George Liepart, a former pastor Chief Hittle

had met while serving on a church-school board before becoming Chief, had four tickets to the Global Leadership

Summit (“Summit”). Ibid.

The Summit is an internationally renowned leadership-training program that assembles leaders from the

business world, academia, and the religious community.

Ibid. It has featured many high-profile speakers, including former Presidents Bill Clinton and Jimmy Carter, former Secretary of State Colin Powell, Jack Welch (former

CEO of General Electric), Carly Fiorina (former CEO of

Hewlett-Packard), and the musician Bono. Ibid. The

Summit is broadcast to sites around the world, making attendance affordable for the more than 120,000 people who

attend each year. Ibid. Chief Hittle and three other fire

department officials attended the Summit at a nearby

church on August 5 and 6, 2010. Ibid. They paid for the

tickets with their own money and did not use City funds.

Id. at 48a (VanDyke, J., dissenting).

All four fire officials carpooled to the Summit using

Chief Hittle’s car, which the City directed him to drive at

all times so he could respond to emergency incidents. Id.

at 12a; C.A. E.R. 223, 266, 1080-1081. During the conference, Chief Hittle and his colleagues stayed in communication with the fire department by answering phone calls

and emails. App., infra, at 48a (VanDyke, J., dissenting).

Chief Hittle also reported to work as soon as the conference finished each day at 4:00 p.m. C.A. E.R. 255. Indeed,

Montes admitted that “the City was not concerned that he

was away from the Department for two days,” but only

that he attended an activity that was religious. App., infra, at 61a (VanDyke, J., dissenting).

A month later, the City received a second anonymous

letter complaining that Chief Hittle and three other firedepartment employees had attended “a religious function

on city time” using “a city vehicle.” Id. at 11a. In response,

City Manager Bob Deis and Montes questioned Chief Hittle about the religious nature of the leadership training he

attended. Id. at 11a-12a. Deis told Chief Hittle that it was

“not acceptable” for him to “use public funds to attend religious events; even if under the guise of leadership development.” Id. at 12a. In October 2010, Montes again decried the “Christian Coalition” within the fire department

to Chief Hittle. Ibid. It was clear that Montes believed

Chief Hittle’s involvement in the so-called “Christian Coalition” was “wrong and distasteful.” Id. at 13a. Deis also

reiterated “his understanding that there is a ‘clique’ in the

Fire Department that is associated with religion whose

members had attended the Global Leadership Summit.”

C.A. E.R. 250.

On November 1, 2010, the City issued a Notice of Investigation to Chief Hittle identifying five issues, one of

which was “use of City time and [a] City vehicle to attend

a religious event.” Id. at 508. The City retained Trudy

Largent to investigate Chief Hittle’s conduct. App., infra,

at 6a. Largent made no attempt to contact the Summit or

investigate whether the Summit provided high-quality

leadership training that satisfied Montes’s directive. Id.

at 14a. During Largent’s interview of Montes, Montes

again referred to concerns about the “church clique.” Id.

at 15a. Montes also told the investigator that Chief Hittle’s positive feedback about the Summit “shows very poor

judgment” and that “he should see that there is a perception issue.” C.A. E.R. 1429. The investigator interrogated

Chief Hittle about his religious activities and relationships, asking him about “a religious covenant in the Department” or a “religious clique.” Id. at 294.

Largent submitted her report (“Largent Report”) on

August 5, 2011, concluding that Chief Hittle had committed misconduct that warranted termination. App., infra,

at 15a-17a. Largent determined that the first two of the

four “most serious acts of misconduct” were: (1) “Inappropriate use of City time and a City vehicle to attend a religious event” and (2) “Favoritism by Chief Hittle regarding

certain employees of the department in approving their inappropriate attendance on City time of a religious event.”

C.A. E.R. 248. Largent’s report further illustrated that

the religious nature of the Summit was key to her conclusions, finding that “it is clear that the primary mission of

the Global Leadership Summit was to specifically provide

for the benefit of those of a particular religion, Christianity.” App., infra, at 15a. She claimed that when Chief Hittle “arrived at the Summit location * * * and observed

where it was being held [(a church)] this should have

alerted Hittle that his participation and that of his managers would not be appropriate.” Ibid. Thus, the investigator’s primary findings—and reasons for recommending

that Chief Hittle lose his job—related directly to his attendance at a “religious” event.

Acting quickly, the City issued Chief Hittle a Notice of

Intent to Remove from City Service (“Removal Notice”)

on August 24, 2011. Id. at 17a. The Removal Notice listed

ten charges of misconduct as the basis for Chief Hittle’s

termination. Id. at 17a-20a. The first two charges were

that Chief Hittle “used City time and resources to attend

a religious leadership event” and that he “approved the attendance on City time of” other employees “at the same

religious leadership event.” Id. at 17a-18a.

The City sent Chief Hittle a formal notice of his termination on September 30, 2011, and his termination became

effective as of October 3, 2011. Id. at 21a.

II. PROCEEDINGS BELOW

A. Proceedings in the district court

Chief Hittle sued, alleging the City fired him because

of his religion in violation of, inter alia, Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). He also

alleged that his religion was a motivating factor in his termination, pursuant to 42 U.S.C. § 2000e-2(m). The parties

filed cross-motions for summary judgment, and the district court granted summary judgment to the City, denied

Chief Hittle’s motion for summary judgment, and entered

judgment in favor of the City. App., infra, at 136a.

B. Proceedings in the court of appeals

1. The Ninth Circuit affirmed. Using the McDonnell

Douglas framework, it held the City had legitimate, nondiscriminatory reasons for terminating Chief Hittle, including “other persons’ perceptions” that the City was endorsing religion, and “constitutional and business concerns.” Id. at 25a-26a. The court of appeals concluded that

due to these justifications, the City’s actions did not constitute discrimination because of religion. Id. at 32a. The

court acknowledged that the Largent Report and Removal Notice listed Chief Hittle’s attendance at the

“religious event” as a primary reason for his termination

and that Deis and Montes repeatedly referenced Chief

Hittle’s religion in reprimanding him. Ibid. But the court

nonetheless reasoned that the City disciplined Chief Hittle because the event he attended was “of no benefit” to

the City. Id. at 27a. Based on that analysis, the court held

that Chief Hittle had “failed to persuasively argue that

[the City’s] non-discriminatory reasons were pretextual,”

and that he therefore failed the third step of the McDonnell Douglas framework. Id. at 35a.

The court of appeals also concluded that Chief Hittle

had failed to demonstrate that religion was even a motivating factor in his termination because Montes’s and

Deis’s remarks did not “demonstrat[e] their own discriminatory animus,” but rather “focused on the Summit’s lack

of benefit to the City and other evidence of Hittle’s misconduct.” Id. at 30a. The court therefore affirmed summary judgment in favor of the City, despite the fact that

Chief Hittle had presented substantial evidence that religion motivated his firing, including on the face of the

Largent Report and the Removal Notice.

2. The Ninth Circuit denied rehearing en banc over

the votes of four judges, though the panel issued a slightly

amended opinion. Id. at 1a-72a.

Judge VanDyke filed a lengthy dissent, which was

joined in part by Judge Callahan. He argued that the “record includes ample direct and circumstantial evidence of

[the decisionmakers’] discriminatory intent, which the

panel should have recognized as more than sufficient to

meet Hittle’s burden at the summary judgment stage.”

Id. at 44a.

Judge VanDyke observed that the panel had incorrectly heightened the standard of proof for a Title VII

plaintiff. The court should have asked whether Chief Hittle submitted evidence creating a material factual dispute

over whether religion was one reason for his firing. But

instead the panel “privileg[ed] the City’s ‘other nondiscriminatory reasons’ that supposedly justified Hittle’s firing, * * * flout[ing] Bostock’s explanation of the but-for

causation standard. We know that Hittle’s Summit attendance was one but-for cause of his firing for the very

simple and unassailable reason that the City has told us

so.” Id. at 67a.

Judge Callahan, joined by Judge VanDyke, opined that

the panel did not view the evidence in the light most favorable to the nonmoving party and that the case should have

proceeded to a jury. Id. at 36a. Judge Ikuta, a member of

the panel, voted for rehearing because the panel decision

treats religious-discrimination plaintiffs worse than other

Title VII plaintiffs, who need produce only “very little evidence” to overcome an employer’s motion for summary

judgment. Id. at 37a (quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000);

Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027,

1039 (9th Cir. 2005)). Judges Callahan and Nelson joined

Judge Ikuta’s dissent. Ibid.

REASONS FOR GRANTING THE PETITION

The McDonnell Douglas framework is a countertextual, judge-made test that engenders conflict within the

courts of appeals and denies plaintiffs with meritorious

discrimination claims their day in court. The lower courts’

confusion regarding the application of McDonnell Douglas’s third step is a manifestation of the test’s fundamental

problems. The test conflicts with the text of Title VII,

Rule 56, and Bostock’s explanation of the but-for causation

standard required in Title VII cases.

McDonnell Douglas has outlived its utility and should

be overruled. At minimum, this Court should clarify that

a plaintiff is not required to disprove an employer’s proffered reasons for an adverse employment action to survive

summary judgment on his discrimination claims. This is

especially true of cases brought under a motivating-factor

theory, in which discrimination need not even be a but-for

cause of the adverse employment action.

I. MCDONNELL DOUGLAS SHOULD BE OVERRULED BECAUSE IT CREATES AN ARTIFICIAL, JUDGE-MADE

TEST THAT IS UNWORKABLE AND CONTRARY TO THE

STATUTE

A. The McDonnell Douglas burden-shifting framework is not found in the text of the Civil Rights Act of 1964.

See generally Sperino, Flying Without a Statutory Basis:

Why McDonnell Douglas Is Not Justified by Any Statutory Construction Methodology, 43 Hous. L. Rev. 743

(2006); Widiss, Proving Discrimination by the Text, 106

Minn. L. Rev. 353, 355 (2021). This Court invented it in

1973, McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-807 (1973), at a time when Title VII cases were tried

exclusively to the bench. Sperino, Irreconcilable: McDonnell Douglas and Summary Judgment, 102 N.C. L. Rev.

459, 467-468 (2024). McDonnell Douglas was originally

designed “to assure that the plaintiff [has] his day in court

despite the unavailability of direct evidence.” Trans

World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985);

Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1224 (10th

Cir. 2003) (Hartz, J., writing separately) (stating McDonnell Douglas “was viewed at the time as a plaintiff-friendly

opinion”).

Congress amended Title VII in 1991 to allow for jury

trials. 42 U.S.C. § 1981a(c); Pub. L. No. 102-166, 105 Stat.

1071. Although the judge was no longer the factfinder,

this Court and lower courts began applying McDonnell

Douglas’s framework at the summary-judgment stage.

See O’Connor v. Consol. Coin Caterers Corp., 517 U.S.

308, 309 (1996); Wells, 325 F.3d at 1227 (Hartz, J., writing

separately) (observing that the Supreme Court did not

apply McDonnell Douglas at summary judgment until 23

years later); Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939,

952 n.2 (11th Cir. 2023) (Newsom, J., concurring) (“Ironically, resolving cases at summary judgment seems to be

McDonnell Douglas’s sole remaining office.”). This Court

extended McDonnell Douglas to the summary-judgment

context without examining the appropriateness of doing

so. See O’Connor, 517 U.S. at 309.

McDonnell Douglas establishes a three-part burdenshifting framework. First, a plaintiff bears the burden of

establishing his “prima facie” case, consisting of four elements. McDonnell Douglas, 411 U.S. at 802-807. These

elements have changed over the years and now typically

require the plaintiff to prove “(1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly

situated individuals outside his protected class were

treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” App., infra, at 22a (quoting Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847

(9th Cir. 2004)). If a plaintiff establishes a prima facie

case, a presumption of discrimination arises and the burden of production shifts to the employer to articulate a “legitimate, nondiscriminatory reason” for the adverse action. McDonnell Douglas, 411 U.S. at 802. Once the employer articulates a reason, the burden shifts back to the

employee to prove that the employer’s proffered reason is

“pretext.” Id. at 804.

B. Since its creation, courts struggled to apply the

McDonnell Douglas framework and questioned whether

it is consistent with the plain text of Title VII. See, e.g.,

Brady v. Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C.

Cir. 2008) (Kavanaugh, J.) (observing that McDonnell

Douglas’s prima facie case “has not benefited employees

or employers; nor has it simplified or expedited court proceedings. In fact, it has done exactly the opposite, spawning enormous confusion and wasting litigant and judicial

resources.”); Griffith v. City of Des Moines, 387 F.3d 733,

745 (8th Cir. 2004) (Magnuson, J., concurring) (“McDonnell Douglas should not be used by courts to analyze Title

VII claims. The burden-shifting framework is not supported in the language of the statute, nor does it impose

liability under Title VII as Congress intended.”).

Recognizing that McDonnell Douglas asks different

questions from the elements a plaintiff must prove at trial,

most federal circuits have eliminated the framework from

their jury instructions. See Tymkovich, The Problem with

Pretext, 85 Denv. U. L. Rev. 503, 527-528 (2008) (collecting

cases); see, e.g., Ninth Circuit Jury Instructions Committee, Manual of Model Jury Instructions for the District

Courts of the Ninth Circuit (2017 ed., last updated June

2024), at 244-245 (stating “a McDonnell Douglas burdenshifting instruction should not be given in a Title VII

case”); Mobasher v. Bronx Cmty. Coll. of City of New

York, 269 F. App’x 71, 73 (2d Cir. 2008) (“The language

used in the traditional McDonnell Douglas formulation,

developed by appellate courts for use by judges, is at best

irrelevant, and at worst misleading to a jury.” (internal

quotation marks omitted)).

This disconnect between McDonnell Douglas and the

statutory elements has led judges to rightly question why

different standards should apply to different procedural

stages that all ask the same ultimate legal question. Cf.

Walton v. Powell, 821 F.3d 1204, 1212 (10th Cir. 2016)

(Gorsuch, J.) (arguing for applying “the same and

straightforward standard for liability * * * for all cases at

all stages in the litigation rather than devis[ing] special

and idiosyncratic (McDonnell Douglas) rules that depend

on what kind of proof you allege, what kind of case you

allege, and where in the life of the litigation you happen to

find yourself”).

If anything, applying McDonnell Douglas is most inappropriate at the summary-judgment stage. Judges

have repeatedly criticized the McDonnell Douglas test as

inconsistent with the straightforward Rule 56 analysis because it requires courts to focus on tangential issues, rather than on whether the plaintiff produced sufficient evidence to establish the statutory elements. As Judge Newsom recently explained, McDonnell Douglas “not only

lacks any real footing in the text of Rule 56 but, worse, actually obscures the answer to the only question that matters at summary judgment: Has the plaintiff shown a ‘genuine dispute as to any material fact’—in the typical Title

VII case, as to whether her employer engaged in discrimination based on a protected characteristic.” See Tynes,

88 F.4th at 949 (Newsom, J., concurring). Put another

way, “[r]ather than concentrating on what should be the

focus of attention—whether the evidence supports a finding of unlawful discrimination—courts focus on the isolated components of the McDonnell Douglas framework,

losing sight of the ultimate issue.” Wells, 325 F.3d at 1224

(Hartz, J., writing separately). Consequently, many lower

courts continue to find themselves tangled in the “snarls

and knots” of McDonnell Douglas, to the detriment of

both employers and employees. Coleman v. Donahoe, 667

F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring). As

then-Judge Gorsuch observed, recurring “confusion and

complexities” have caused “more than a few keen legal

minds [to] question[]whether the McDonnell Douglas

game is worth the candle.” Walton, 821 F.3d at 1210-1211.

The third stage of McDonnell Douglas illustrates

these problems most starkly. And it is the third step that

is nearly always dispositive. Once the employer meets its

step-two burden to offer a legitimate, nondiscriminatory

reason for the plaintiff’s termination, which it will “almost

always” do, Sperino, 102 N.C. L. Rev. at 486, “the McDonnell-Burdine presumption ‘drops from the case.’” U.S.

Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715

(1983) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 255 n.10 (1981)). At that point, “the district court

must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that

the employer’s asserted non-discriminatory reason was

not the actual reason and that the employer intentionally

discriminated against the employee on the basis of race,

color, religion, sex, or national origin?” Brady, 520 F.3d

at 494 (Kavanaugh, J.).

Thus, rather than asking solely whether the plaintiff

has created a material factual dispute over whether discrimination was one reason for the adverse employment

action—as Rule 56 and Title VII dictate—McDonnell

Douglas’s third step requires the plaintiff to show that the

employer’s proffered reasons were pretextual. McDonnell Douglas, 411 U.S. at 804. This is directly contrary to

Bostock, which recognizes there can be more than one butfor cause of an employment action. 590 U.S. at 656.

C. McDonnell Douglas’s countertextual test is fatally

flawed and should be overruled. The stare decisis considerations, including “the quality of [the precedent’s] reasoning, the workability of the rule it established, . . . and

reliance on the decision,” Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2270 (2024) (quoting Knick v. Twp.

of Scott, 588 U.S. 180, 203 (2019) (citations omitted)), all

weigh in favor of overruling McDonnell Douglas.

First, McDonnell Douglas is a judge-made rule that

does not comport with the text of Title VII. “McDonnell

Douglas masks and muddles the critical Rule 56 inquiry,”

and “[t]here’s certainly no textual warrant in Title VII or

the Federal Rules for so elaborate a scheme.” Tynes, 88

F.4th at 952, 958 (Newsom, J., concurring).

Second, as the critics cited above attest, McDonnell

Douglas is unworkable. It has also been undermined by

later precedents and creates anomalies in the law. For example, this Court held in Desert Palace, Inc. v. Costa that

Title VII “treat[s] circumstantial and direct evidence

alike,” 539 U.S. 90, 100 (2003), yet the artificial McDonnell

Douglas framework applies only in indirect-evidence

cases. Trans World Airlines, Inc., 469 U.S. at 121 (“[T]he

McDonnell Douglas test is inapplicable where the plaintiff

presents direct evidence of discrimination.”).

Third and finally, no reliance interests justify preserving the McDonnell Douglas framework. As discussed infra Part II, it has been “inconsistent[ly] appli[ed] by the

lower courts” and “does not provide a clear or easily applicable standard.” Loper Bright, 144 S. Ct. at 2272 (internal

quotation marks omitted). McDonnell Douglas was designed to be used by judges—not employers or employees—and judges can readily return to applying the text of

Title VII and Rule 56.

II. STEP THREE OF THE MCDONNELL DOUGLAS FRAMEWORK HAS CREATED CONFUSION IN THE COURTS OF

APPEALS

Even if the Court does not overrule McDonnell Douglas, it should grant review to establish the proper test for

McDonnell Douglas’s third step, an issue that has confounded lower courts.

A. There is a 6-6 split among the courts of appeals

regarding whether a plaintiff must disprove the

employer’s proffered reasons at step three of the

McDonnell Douglas framework

While the entire McDonnell Douglas enterprise is

deeply problematic, the third step has created especially

pernicious issues, resulting in a split among the circuits

over how to apply it. By granting plenary review, this

Court can both clarify the law and adopt an interpretation

of McDonnell Douglas that lessens the tension between

the judge-made rule and Title VII, Rule 56, and Bostock.

1. Recall that the third step of the McDonnell Douglas framework requires the employee to provide evidence

that the employer’s stated reason for termination is in fact

pretextual. McDonnell Douglas, 411 U.S. at 804. The

First, Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits interpret this step to require that the plaintiff disprove the employer’s proffered reason. See Rios v. Centerra Grp. LLC, 106 F.4th 101, 113 (1st Cir. 2024) (to establish pretext the plaintiff must both “impugn the veracity of the employer’s justification” and “elucidate specific

facts which would enable a jury to find that the reason

given is * * * a sham intended to cover up the employer’s

real and unlawful motive of discrimination”); Anderson v.

St., 104 F.4th 646, 653 (7th Cir. 2024) (stating that showing

pretext “requires demonstration by a preponderance of

the evidence that the stated reasons for her firing were

false, not that they were unfair or baseless”); Akridge v.

Alfa Ins. Cos., 93 F.4th 1181, 1196 (11th Cir. 2024) (“A reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that

discrimination was the real reason.” (citation omitted));

App., infra, at 35a (granting summary judgment in favor

of the employer because the employee could not disprove

the employer’s proffered reasons); Sempowich v. Tactile

Sys. Tech., Inc., 19 F.4th 643, 652 (4th Cir. 2021) (“[T]o

show pretext, a plaintiff may show that an employer’s

proffered nondiscriminatory reasons for the termination

are inconsistent over time, false, or based on mistakes of

fact.” (citation omitted)); Briggs v. Univ. of Cincinnati, 11

F.4th 498, 509 (6th Cir. 2021) (“When the burden shifts

back to the plaintiff, ‘he must come forward with evidence

that the defendant’s reason for the employment action is

false’ * * *.” (citation omitted)).

These circuits’ application of the third step of McDonnell Douglas is irreconcilable with Title VII’s prohibition

on terminating an employee “because of” the employee’s

protected trait, 42 U.S.C. § 2000e-2(a)(1), which embodies

a standard but-for causation test. Bostock, 590 U.S. at 656.

As Bostock held, there can be “multiple but-for causes” of

an adverse employment action. Ibid. “When it comes to

Title VII, the adoption of the traditional but-for causation

standard means a defendant cannot avoid liability just by

citing some other factor that contributed to its challenged

employment decision. So long as the plaintiff’s [religion]

was one but-for cause of that decision, that is enough to

trigger the law.” Ibid. It is of “no significance” if another

factor “might also be at work, or even play a more important role in the employer’s decision.” Id. at 665.

A formulation of the pretext inquiry that requires disproving the employer’s proffered reason therefore improperly assumes that an employee’s termination has only

one but-for cause. After all, under Bostock, discrimination

can be a but-for cause of an employee’s termination even

if the employer’s proffered nondiscriminatory reason also

truly motivated the employer. See ibid. Thus, a failure to

disprove the employer’s reason should not defeat summary judgment.

Furthermore, this formulation of the third step is inconsistent with the summary-judgment standard in two

ways. First, it flouts the requirement to “view all facts and

draw all reasonable inferences in favor of the nonmoving

party,” Crawford v. Metro. Gov’t of Nashville & Davidson

Cnty., 555 U.S. 271, 274 n.1 (2009) (citation omitted), by

improperly accepting the employer’s reasons as the starting point for the third-step inquiry. It also invades the

province of the jury to disbelieve the employer’s proffered

reasons. Second, it ignores that the employee’s Title VII

claim should survive summary judgment if a reasonable

jury could find that his protected trait was a but-for cause

of his termination. See Fed. R. Civ. P. 56(a); Sperino, 102

N.C. L. Rev. at 483 (“Judges often forget that the plaintiff

is not required to rebut the defendant’s articulated reason

to survive a summary judgment motion. Instead, the

plaintiff’s claim should be allowed to proceed if a reasonable jury could find in the plaintiff’s favor on the underlying

claim.”). Because the termination could have multiple butfor causes, disproving the employer’s proffered reasons

for the termination should be sufficient—but should not be

required—to defeat summary judgment.

2. That is the approach taken by the Second, Third,

Fifth, Eighth, Tenth, and D.C. Circuits. Those courts allow plaintiffs to satisfy McDonnell Douglas’s third step either by disproving the employer’s proffered reasons or by

providing other evidence of discrimination. See Bart v.

Golub Corp., 96 F.4th 566, 576 (2d Cir. 2024) (“To satisfy

the third-stage burden under McDonnell Douglas and

survive summary judgment in a Title VII disparate treatment case, a plaintiff may, but need not, show that the employer’s stated reason was false, and merely a pretext for

discrimination; a plaintiff may also satisfy this burden by

producing other evidence indicating that the employer’s

adverse action was motivated at least in part by the plaintiff’s membership in a protected class.”); Qin v. Vertex,

Inc., 100 F.4th 458, 474-475 (3d Cir. 2024) (holding that

pretext can be established “by demonstrating, among

other things, that ‘the employer treated other, similarly

situated persons not of his protected class more favorably’” (citation omitted)); Markley v. U.S. Bank Nat’l

Ass’n, 59 F.4th 1072, 1081-1082 (10th Cir. 2023) (“A plaintiff may show pretext by demonstrating the proffered

reason is factually false, or that discrimination was a primary factor in the employer’s decision.” (citation omitted)); Jones v. Gulf Coast Rest. Grp., Inc., 8 F.4th 363, 368

(5th Cir. 2021) (“Pretext may be established through evidence of disparate treatment or by showing the employer’s explanation to be false or ‘unworthy of credence’—that it is ‘not the real reason for the adverse employment action.’” (citations omitted)); Williams v. United

Parcel Serv., Inc., 963 F.3d 803, 808 (8th Cir. 2020) (stating

a plaintiff can show pretext “by presenting evidence that

the employer ‘treated similarly-situated employees in a

disparate manner’”); Brady, 520 F.3d at 495 (holding a

plaintiff may show pretext by “produc[ing] evidence suggesting that the employer treated other employees of a

different race, color, religion, sex, or national origin more

favorably in the same factual circumstances”).

Allowing employees to meet their step-three burden

by providing other evidence of discrimination is more consistent with Title VII, Bostock, and the summary-judgment standard because it accounts for the fact that a reasonable jury could find that discrimination was one but-for

cause of an employee’s termination even where the employee could not disprove the employer’s proffered reason.

This could be true where there are multiple but-for causes

of an employee’s termination and one of those causes was

the employee’s protected trait, or when the jury, acting in

its role as the factfinder, does not find the employer’s reason credible. Such cases should not fail at the summaryjudgment stage merely because an employee cannot disprove the employer’s proffered reasons.

3. The judgment below lines up with the wrong side

of this split. The court of appeals declared that a plaintiff

can show pretext “either directly by persuading the court

that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer’s

proffered explanation is unworthy of credence.” App., infra, at 22a (emphasis added) (quotation omitted). While

the court seemingly offered an option beyond falsifying

the employer’s reasons, the alternative requirement to

show that discrimination “more likely motivated” the employer suffers from the same fallacy that only one but-for

reason is possible. Thus, the court mistakenly required

Chief Hittle to disprove the employer’s allegedly nondiscriminatory reasons to survive summary judgment, relying on the Largent Report’s other listed bases for Chief

Hittle’s termination and rejecting Chief Hittle’s “effort to

cast the findings in the Largent Report as mere pretext

for discrimination.” App., infra, at 33a. It should have

been sufficient for Chief Hittle to produce some evidence

that his religion was one but-for reason for his termination—as he plainly did. But instead the court of appeals

“privileg[ed] the City’s ‘other nondiscriminatory reasons’

that supposedly justified Hittle’s firing, * * * flout[ing]

Bostock’s explanation of the but-for causation standard.”

Id. at 67a (VanDyke, J., dissenting).

Nor is this the first time the Ninth Circuit has applied

its erroneous approach to McDonnell Douglas’s third

step. In Curley v. City of North Las Vegas, for example,

it held that the plaintiff had failed to meet his burden at

the third step because he had not disproved all four of the

employer’s proffered reasons for his termination. 772

F.3d 629, 632-633 (9th Cir. 2014). It held that “[d]isputing

only one of several well-supported, independently sufficient reasons for termination is generally not enough to

defeat summary judgment.” Id. at 633. Though the plaintiff offered temporal-proximity evidence to support his retaliation claim, the court held that the temporal evidence

“d[id] nothing to refute the City’s legitimate explanations

for the adverse employment action, making summary

judgment appropriate even if Curley has established a

prima facie case.” Id. at 634.

This Court should grant certiorari to clarify that an

employee need not disprove an employer’s proffered reasons for termination to survive summary judgment where

he can provide other forms of evidence that discrimination

was one but-for cause of his termination.

B. There is an additional split regarding how step

three is applied in motivating-factor cases

The problems with McDonnell Douglas’s third step

are even more pronounced in motivating-factor cases,

which require a plaintiff to demonstrate only that his protected characteristic “was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). McDonnell

Douglas predated this statutory amendment and was

plainly not designed to address this type of case. Yet some

courts, including in the decision below, continue to apply

McDonnell Douglas’s third step to motivating-factor

cases.

The motivating-factor test for establishing discrimination was first adopted by this Court years after McDonnell Douglas in Price Waterhouse v. Hopkins, 490 U.S.

228 (1989). There, the Court declined to apply McDonnell

Douglas’s third step to motivating-factor cases. The

Court recognized that the third-step pretext inquiry

makes no sense in a mixed-motives (or motivating-factor)

case: “Where a decision was the product of a mixture of

legitimate and illegitimate motives, * * * it simply makes

no sense to ask whether the legitimate reason was ‘the

“true reason”’ * * * for the decision.” Price Waterhouse,

490 U.S. at 247. Applying McDonnell Douglas “would require a plaintiff who challenges an adverse employment

decision in which both legitimate and illegitimate

considerations played a part to pretend that the decision,

in fact, stemmed from a single source.” Ibid.

Although the mixed-motives theory of liability formulated in Price Waterhouse was displaced by the addition of

42 U.S.C. § 2000e-2(m) in the Civil Rights Act of 1991, see

Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 589 U.S. 327, 337 (2020), this Court’s holding that

McDonnell Douglas is inapposite in a mixed-motives case

still applies with full force. As the Court recently explained, “[b]ecause McDonnell Douglas arose in a context

where but-for causation was the undisputed test, it did not

address causation standards.” Id. at 340.

Implementing that commonsense lesson, three courts

of appeals have held that McDonnell Douglas does not apply to mixed-motive cases. See Brandt v. Fitzpatrick, 957

F.3d 67, 76 (1st Cir. 2020) (“McDonnell Douglas didn’t

pave the only road to relief for a plaintiff alleging statusbased discrimination under Title VII. That’s because a

hirer’s decision-making can violate the statute even if the

plaintiff’s race wasn’t the single, ‘true reason’ for the final

decision.”); Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d

1227, 1238 (11th Cir. 2016) (“In light of this clear incongruity between the McDonnell Douglas framework and

mixed-motive claims, it is improper to use that framework

to evaluate such claims at summary judgment.”); White v.

Baxter Healthcare Corp., 533 F.3d 381, 401 (6th Cir. 2008)

(“As the shifting burdens of McDonnell Douglas and Burdine are unnecessary to assist a court in determining

whether the plaintiff has produced sufficient evidence to

convince a jury of the presence of at least one illegitimate

motivation on the part of the defendant, we conclude that

the McDonnell Douglas/Burdine framework does not apply to our summary judgment analysis of mixed-motive

claims.”).

Three other courts of appeals (the Second, Fifth, and

Third Circuits) modify McDonnell Douglas’s third step in

motivating-factor cases. Those courts hold that proof of

pretext is sufficient, but not necessary, to satisfy the third

step. Instead, in the Second Circuit, a plaintiff may satisfy

the third step “by adducing evidence that, even if the employer had mixed motives, the plaintiff’s membership in a

protected class was at least one motivating factor in the

employer’s adverse action.” Bart, 96 F.4th at 567. Similarly, in the Fifth Circuit, the plaintiff may offer evidence

“that the defendant’s reason, while true, is only one of the

reasons for its conduct, and another ‘motivating factor’ is

the plaintiff’s protected characteristic.” Rachid v. Jack In

The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004). The Third

Circuit has also indicated that the pretext step would apply differently to mixed-motive cases, though it has not yet

articulated a precise rule. Makky v. Chertoff, 541 F.3d

205, 214 (3d Cir. 2008) (“The McDonnell Douglas burdenshifting framework does not apply in a mixed-motive case

in the way it does in a pretext case because the issue in a

mixed-motive case is not whether discrimination played

the dispositive role but merely whether it played ‘a motivating part’ in an employment decision.”).

By contrast, the Seventh, Eighth, Ninth, Tenth, and

D.C. Circuits apply an unmodified version of McDonnell

Douglas in motivating-factor cases using indirect evidence

of discrimination. See Runkel v. City of Springfield, 51

F.4th 736, 742 (7th Cir. 2022); Mayorga v. Merdon, 928

F.3d 84, 89 (D.C. Cir. 2019); Banks v. Deere, 829 F.3d 661,

666 (8th Cir. 2016); Fye v. Okla. Corp. Comm’n, 516 F.3d

1217, 1225 (10th Cir. 2008). In the decision below, the

Ninth Circuit—despite Chief Hittle’s arguments that the

McDonnell Douglas framework should not apply—used

an unmodified version of McDonnell Douglas’s pretext requirement to affirm summary judgment on Chief Hittle’s

motivating-factor claim. App., infra, at 22a, 30a. It addressed motivating factor in one sentence, holding that

“because neither Montes nor Deis made any remarks

demonstrating their own discriminatory animus toward

religion * * * but focused on the Summit’s lack of benefit

to the City and other evidence of Hittle’s misconduct, Hittle failed to demonstrate that discriminatory animus toward religion was even a motivating factor in his termination.” Id. at 30a.

The Ninth Circuit’s reliance on the City’s purported

nondiscriminatory reasons to grant summary judgment

under a motivating-factor theory was inconsistent with Title VII. See id. at 66a-68a (VanDyke, J. dissenting). And

its decision that religion was not even a motivating factor

in Chief Hittle’s termination can only be explained by the

court’s robotic application of McDonnell Douglas’s third

step where it does not belong.

At minimum, this Court should clarify that proof of

pretext is not required to survive summary judgment under 42 U.S.C. § 2000e-2(m) when a plaintiff has adduced

proof that his protected characteristic was a motivating

factor in his termination.

III. THE NINTH CIRCUIT REACHED THE WRONG RESULT

BECAUSE OF ITS ERRONEOUS VIEW OF MCDONNELL

DOUGLAS

The Ninth Circuit’s erroneous view of McDonnell

Douglas’s third step turned what should have been a case

that easily survived the City’s motion for summary judgment into one that was dismissed at that juncture. One

can hardly imagine better but-for causation evidence than

the Largent Report’s and the Removal Notice’s listing attendance at a “religious” event as the primary reason for

Chief Hittle’s termination. But the Ninth Circuit’s application of the McDonnell Douglas framework caused it to

unduly focus on the City’s other explanations for the

termination, favor the City’s spin on the facts, and artificially compartmentalize the evidence. Chief Hittle would

have prevailed under a traditional application of the summary-judgment standard, but the Ninth Circuit’s warped

understanding of McDonnell Douglas led to the opposite

result.

A. The Ninth Circuit improperly required that

Chief Hittle disprove the City’s proffered reasons for his termination

Even in an obvious case of discrimination—say, one

where the court of appeals originally recognized that attending a “religious” event was the “gravamen” of the termination, id. at 101a (original opinion)—the plaintiff sometimes cannot satisfy McDonnell Douglas’s third step, at

least as it has been interpreted in the court below and

aligned circuits.

As Judge VanDyke observed, “[w]e know that Hittle’s

Summit attendance was one but-for cause of his firing for

the very simple and unassailable reason that the City has

told us so.” Id. at 67a. Indeed, the Ninth Circuit’s original

opinion candidly acknowledged that “the gravamen of

Largent’s Report and the notice terminating Hittle was

the religious nature of the leadership event.” Id. at 101a

(emphases added). In the amended opinion, the court

changed that sentence to state that “an aspect of Largent’s

Report and the notice terminating Hittle was the religious

nature of the leadership event.” Id. at 32a (emphasis

added). But either way, the reality that the religious nature of the event played a significant part in Chief Hittle’s

termination should have been enough for his Title VII

claims to survive the City’s motion for summary judgment.

Instead, the court of appeals held that “the summary

judgment record does not contain evidence to raise genuine issues of material fact sufficient for Hittle to meet his

burden to demonstrate that Defendants’ legitimate nondiscriminatory reasons for firing him were mere pretext

for religious discrimination.” Ibid. The court pointed to

the fact that the Largent Report listed other reasons for

Chief Hittle’s termination and rejected his “effort to cast

the findings of misconduct in the Largent Report as mere

pretext for discriminatory termination.” Id. at 33a.

Under Bostock, however, Chief Hittle did not have to

disprove any of the other reasons listed in the Largent Report or Removal Notice. Even if those other reasons

“might also be at work, or even play a more important role

in the employer’s decision,” Chief Hittle needed only to

show that religious discrimination was a but-for cause of

his termination. Bostock, 590 U.S. at 665. And under Rule

56, a reasonable jury could have readily concluded that religion was at least one but-for cause—if not the gravamen—of his firing. The court of appeals affirmed summary judgment only “by privileging the City’s ‘other nondiscriminatory reasons’ that supposedly justified Hittle’s

firing,” thus “flout[ing] Bostock’s explanation of the butfor causation standard.” App., infra, at 67a (VanDyke, J.,

dissenting).

The court of appeals’ error is even clearer on Chief Hittle’s motivating-factor claim, where the veracity of the

City’s proffered reasons is especially irrelevant. The court

concluded that religion was not even a motivating factor in

his termination because Montes’s and Deis’s remarks did

not “demonstrat[e] their own discriminatory animus toward religion,” but instead “focused on the Summit’s lack

of benefit to the City and other evidence of Hittle’s misconduct.” Id. at 30a. By homing in on the City’s alleged

nondiscriminatory reasons—rather than asking whether a

reasonable jury could have found that discrimination was

a motivating factor—the court below ignored Title VII’s

text and the teaching of Price Waterhouse.

B. The Ninth Circuit credited illegitimate reasons

cited by the City

The court of appeals also erred by uncritically accepting the City’s reasons for termination even though those

reasons were not legitimate and nondiscriminatory. “Bostock v. Clayton County instructs courts not to accept an

employer’s characterizations of its own motivations at face

value and to instead scrutinize whether the employer’s actions were discriminatory.” Id. at 63a (VanDyke, J., dissenting). “[N]othing in Title VII turns on the employer’s

labels or any further intentions (or motivations) for its conduct beyond [the] discrimination.” Ibid. (quoting Bostock,

590 U.S. at 668).

The Ninth Circuit held that certain of Montes’s comments “reflect[ed] Montes’s legitimate concern that the

City could violate constitutional prohibitions and face liability if it is seen to engage in favoritism with certain employees because they happen to be members of a particular religion.” Id. at 25a. It also discounted the supervisors’

discriminatory statements as merely “show[ing] concerns

about other persons’ perceptions.” Ibid. The court relied

on these purportedly “legitimate constitutional * * * concerns” to determine that Montes’s and Deis’s comments

did “not give rise to a genuine issue of discriminatory animus.” Id. at 26a.

This Court’s precedents are to the contrary, holding

that religious discrimination cannot be justified by concerns about perceived endorsement of religion. In Kennedy v. Bremerton School District, this Court held that “in

no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an

individual’s First Amendment rights.” 597 U.S. 507, 543

(2022). Moreover, by overruling Lemon v. Kurtzman and

the related endorsement test, id. at 534-536, Kennedy

firmly forecloses any possibility that the City had

legitimate constitutional concerns about allowing Chief

Hittle to attend faith-related leadership training. Though

Kennedy was decided on First Amendment grounds, as

Judge VanDyke recognized in his dissent, App., infra, at

56a, its holding that employer concerns about endorsement do not justify religious discrimination against public

employees necessarily applies in the Title VII context.

That is because the “Establishment Clause does not include anything like a ‘modified heckler’s veto, in which * *

* religious activity can be proscribed’ based on ‘perceptions’ or ‘discomfort.’” Kennedy, 597 U.S. at 534 (citing

Good News Club v. Milford Cent. Sch., 533 U.S. 98, 119

(2001)). Indeed, the Court recently reaffirmed in Groff v.

DeJoy that the perception of others cannot justify religious discrimination. 600 U.S. 447, 472-473 (2023). There,

the Court held that “bias or hostility to a religious practice

or a religious accommodation” does not provide a defense

to an employer’s refusal to accommodate religion. Ibid.

The Court made clear that “a coworker’s dislike of ‘religious practice and expression in the workplace’” cannot

justify religious discrimination. Ibid.

The court below ignored these holdings when it treated

the City’s “constitutional” concerns as a “legitimate, nondiscriminatory” reason for firing Chief Hittle. App., infra,

at 25a-26a, 28a. As Judge VanDyke recognized, the City’s

endorsement concerns are legitimate and nondiscriminatory only “if the City has a discernable interest in avoiding

an incorrect perception of the endorsement of religion. As

Kennedy, Groff, and Trinity Lutheran make clear, it does

not.” Id. at 62a. The court of appeals should not have allowed these illegitimate concerns to justify the City’s discrimination against Chief Hittle.

C. The Ninth Circuit abandoned its obligation to

read the facts in the light most favorable to

Chief Hittle

The fractured McDonnell Douglas framework also

caused the Ninth Circuit to improperly chip away at Chief

Hittle’s evidence rather than evaluating holistically

whether that evidence created a fact issue regarding

whether his termination was motivated at least in part by

his religion. The court of appeals’ focus on pretext caused

it to place too much emphasis on the City’s proffered reasons and, in doing so, the court abandoned its duty to read

the facts in the light most favorable to Chief Hittle.

As Judge VanDyke explained in his dissent, the court’s

“recounting of the facts focused at length on disputed facts

favoring the City, repeatedly credited the City’s version of

events over Hittle’s, and ignored other undisputed facts

favoring Hittle.” Id. at 44a. This misreading of the facts

directly affected the Ninth Circuit’s holding that Chief

Hittle had not produced sufficient evidence of discrimination.

For example, the parties hotly disputed the specifics of

the training Montes directed Chief Hittle to obtain. Id. at

46a-47a (VanDyke, J., dissenting). But, remarkably, the

court of appeals stated that it was “undisputed that the

Summit * * * did not constitute the type of upper management public sector leadership training that Montes directed Hittle to seek out, as it did not provide any focus on

the management of public agencies.” Id. at 26a (emphasis

added). It then determined that “lack of benefit to the

City” was an “obvious alternative explanation” for Chief

Hittle’s termination, so the Removal Notice did not provide evidence of discrimination. Id. at 27a.

The Ninth Circuit completely ignored Chief Hittle’s

evidence that Montes never stated that the training must

be specific to public-sector leadership and that the Summit

nevertheless met those criteria. C.A. E.R. 169-171, 10591060, 1158-1161 (Chief Hittle and others testifying to the

tangible benefits of the Summit’s leadership training). It

also ignored Chief Hittle’s evidence that the City’s investigation never even inquired into whether the Summit provided the type of training Montes claims she requested

and instead deemed the Summit to be inappropriate training solely because of its religious aspect. Id. at 134, 257260.

As Judge Callahan summarized in her dissent, “Title

VII actions will never be properly determined by juries if

judges grant summary judgments by crediting employers’

allegedly ‘nondiscriminatory’ termination reasons instead

of viewing the facts in favor of the employees alleging discrimination.” App., infra, at 36a. Precisely so. The decision below improperly weaponized McDonnell Douglas’s

third step by uncritically accepting the City’s alleged nondiscriminatory reasons for terminating Chief Hittle and

discounting his evidence of discrimination because it did

not disprove the City’s reasons.

IV. THIS CASE IS AN EXCELLENT VEHICLE TO ADDRESS

THE IMPORTANT QUESTIONS PRESENTED

A. The petition raises important issues

This petition raises issues of great jurisprudential and

practical import. Especially as currently applied, the

McDonnell Douglas framework is preventing meritorious

employment-discrimination cases from reaching a jury.

When plaintiffs have presented evidence that creates a

fact issue regarding whether they were discriminated

against, they should be permitted to try their case to a

jury, period. That is how it works in virtually every other

context. There is no reason that plaintiffs in Title VII

cases should face the added burden of disproving the employer’s proffered reason for the adverse employment

decision. Yet that errant and nontextual view holds sway

in nearly half the country and is causing demonstrable injustices for worthy plaintiffs. This Court’s review could

more closely align the analysis of Title VII cases with the

words of the statute and the way other cases are decided

under Rule 56.

B. The petition squarely presents the issue in a

clean vehicle

This case embodies a clean vehicle, involving a final

judgment, a published opinion that binds the Nation’s

largest circuit, and a well-articulated dissent from denial

of rehearing. Moreover, this is the rare case where the

employer stated in writing that it terminated the employee due to a protected trait. If, instead of focusing on

the veracity of the reasons the City proffered during litigation, the court of appeals had asked whether Chief Hittle presented sufficient evidence that religion was a butfor cause (or at least a motivating factor) of his termination, this case would have easily survived summary judgment. Only because the Ninth Circuit followed the misguided side of the two splits presented here did it avoid

that obvious conclusion.

CONCLUSION

The Court should grant the petition.

Respectfully submitted.

KELLY J. SHACKELFORD

JEFFREY C. MATEER

HIRAM S. SASSER, III

DAVID J. HACKER

STEPHANIE N. TAUB

FIRST LIBERTY INSTITUTE

2001 W. Plano Pkwy.

Ste. 1600

Plano, TX 75075

(972) 941-4444

KAYLA A. TONEY

FIRST LIBERTY INSTITUTE

1331 Penn. Ave., NW

Washington, D.C. 20004

(202) 921-4105

AARON M. STREETT

Counsel of Record

J. MARK LITTLE

ELISABETH C. BUTLER

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77002

(713) 229-1234

aaron.streett@bakerbotts.com

ALAN J. REINACH

JONATHON CHERNE

CHURCH STATE COUNCIL

2686 Townsgate Road

Westlake Village, CA 91361

(805) 413-7398

Counsel for Petitioner Ronald Hittle

October 2024

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

Appendix A – Amended Opinion of the United

States Court of Appeals for the Ninth Circuit

(May 17, 2024) ........................................................... 1a

Appendix B – Opinion of the United States

Court of Appeals for the Ninth Circuit (August

4, 2023) ..................................................................... 73a

Appendix C – Opinion of the United States

District Court for the Eastern District of

California (March 1, 2022) .................................... 105a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

————

No. 22-15485

D.C. No. 2:12-cv-00766-TLN-KJN

————

RONALD HITTLE,

Plaintiff-Appellant,

CITY OF STOCKTON, California;

ROBERT DEIS; LAURIE MONTES,

Defendants-Appellees.

————

Appeal from the United States District Court

for the Eastern District of California

Troy L. Nunley, District Judge, Presiding

————

Argued and Submitted March 27, 2023

San Francisco, California

————

Filed August 4, 2023

Amended May 17, 2024

————

Before: Ronald M. Gould and Sandra S. Ikuta, Circuit

Judges, and Edward R. Korman, * District Judge.

————

ORDER AND AMENDED OPINION

————

SUMMARY **

————

Employment Discrimination

The panel filed (1) an order amending the opinion

filed on August 4, 2023, and denying a petition for

panel rehearing and rehearing en banc; and (2) an

amended opinion affirming the district court’s summary

judgment in favor of defendants in Ronald Hittle’s

employment discrimination action under Title VII and

California’s Fair Employment and Housing Act.

Hittle alleged that he was terminated from his

position as Fire Chief for the City of Stockton based

upon his religion and, specifically, his attendance at a

religious leadership event.

In the amended opinion, the panel held that

employment discrimination claims under Title VII and

the California FEHA are analyzed under the McDonnell

Douglas burden-shifting framework, under which the

plaintiff must establish a prima facie case of discrimination by demonstrating that (1) he is a member of a

protected class; (2) he was qualified for his position;

(3) he experienced an adverse employment action; and

The Honorable Edward R. Korman, United States District

Judge for the Eastern District of New York, sitting by designation.

This summary constitutes no part of the opinion of the court.

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

(4) similarly situated individuals outside his protected

class were treated more favorably, or other circumstances surrounding the adverse employment action

give rise to an inference of discrimination. The burden

then shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for the challenged actions.

Finally, the burden returns to the plaintiff to show that

the proffered nondiscriminatory reason is pretextual.

Alternatively, the plaintiff may establish a prima facie

case of disparate treatment by showing direct or

circumstantial evidence of discrimination. Hittle was

required to show that his religion was “a motivating

factor” in defendants’ decision to fire him with respect

to his federal claims, and that his religion was “a

substantial motivating factor” with respect to his

FEHA claims.

The panel concluded that Hittle failed to present

sufficient direct evidence of discriminatory animus in

defendants’ statements and the City’s notice of intent

to remove him from City service. Hittle also failed to

present sufficient specific and substantial circumstantial evidence of religious animus by defendants. The

district court’s grant of summary judgment in defendants’

favor was appropriate where defendants’ legitimate,

non-discriminatory reasons for firing Hittle were

sufficient to rebut his evidence of discrimination, and

he failed to persuasively argue that these nondiscriminatory reasons were pretextual.

Dissenting from the denial of rehearing en banc,

Judge Callahan, joined by Judge VanDyke, wrote that

she joined her dissenting colleagues’ concern that the

panel’s opinion fails to follow the Supreme Court’s

directive prohibiting discrimination based on religion.

She also feared that the panel’s opinion would be read

to foreclose claims of discrimination for all protected

classes because it gives only lip service to the Supreme

Court’s directive that, on summary judgment, the

evidence must be viewed in the light most favorable to

the nonmoving party.

Dissenting from the denial of rehearing en banc,

Judge Ikuta, joined by Judges Callahan and R. Nelson,

wrote that the panel’s opinion is in tension with other

Ninth Circuit Title VII cases, which have held that,

as a general matter, the plaintiff in an employment

discrimination action need produce very little evidence

in order to overcome an employer’s motion for

summary judgment.

Dissenting from the denial of rehearing en banc,

Judge VanDyke, joined by Judge Callahan as to Parts

I, II, III, and IV(A), wrote that Hittle produced ample

evidence of the City’s intent to discriminate, and that

was enough to at least survive summary judgment.

Judge VanDyke wrote that the panel abdicated its

responsibility to read the record in the light most

favorable to Hittle, allowed employers to escape liability

for repeating discriminatory remarks simply by hiding

behind those who say them first, and mangled Title

VII’s “motivating factor” analysis. Judge VanDyke also

wrote that, in his view, the alternative reasons offered

by the City were not legitimate or nondiscriminatory,

but are instead further evidence of the City’s discriminatory intent and rest on a misunderstanding of its

obligations under the Establishment Clause based on

the now-discredited endorsement test

COUNSEL

Elisabeth C. Butler (argued) and Aaron M. Streett,

Baker Botts LLP, Houston, Texas; Alan J. Reinach and

Jonathon Cherne, Church State Council, Westlake

Village, California; Kelly J. Shackelford, Jeffrey C.

Mateer, and David J. Hacker, First Liberty Institute,

Plano, Texas; Stephanie N. Taub, First Liberty Institute,

Cabot, Arkansas; Kayla A. Toney, First Liberty

Institute, Washington, D.C.; for Plaintiff-Appellant.

Spencer J. Wilson (argued), Arthur A. Hartinger, Ryan

P. McGinley-Stempel, and Geoffrey Spellberg, Renne

Public Law Group, San Francisco, California; for

Defendants-Appellees.

David H. Thompson and Joseph O. Masterman, Cooper

& Kirk PLLC, Washington, D.C., for Amicus Curiae

Global Leadership Network.

Christopher T. Holinger, Bradley J. Lingo and J. Alex

Touchet, Robertson Center for Constitutional Law, Regent

University School of Law, Virginia Beach, Virginia; for

Amicus Curiae Robertson Center for Constitutinal Law.

Nicholas M. Bruno, Alyssa B. McDaniel, and Zachary

T. Nelson, Beck Redden LLP, Houston, Texas; Sue

Ghosh Stricklett, American Hindu Coalition, Sterling,

Virginia; for Amici Curiae Sikh Coalition, Asma Uddin,

Jewish Coalition for Religious Liberty, American Hindu

Coalition, Coalition for Jewish Values, Islam and

Religious Freedom Action Team, and Coalition of Virtue.

Matthew T. Martens, David M. Cook, and G. Edward

Powell III, Wilmer Cutler Pickering Hale and Dorr LLP,

Washington D.C., for Amicus Curiae Samaritan’s Purse.

ORDER

The Opinion filed on August 4, 2023, is hereby

amended. The amended opinion will be filed concurrently

with this order.

Appellant filed a petition for panel rehearing and

rehearing en banc. Dkt. 74. Judge Gould and Judge

Korman voted to deny the petition for panel rehearing.

Judge Gould voted to deny the petition for rehearing

en banc, and Judge Korman so recommended. Judge

Ikuta voted to grant the petition for panel rehearing

and the petition for rehearing en banc. The full court

was advised of the petition for rehearing en banc. A

judge requested a vote on whether to rehear the

matter en banc. The matter failed to receive a majority

of the votes of the nonrecused active judges in favor of

en banc consideration. Fed. R. App. P. 35(a). Judge

Owens recused himself and did not participate in the

deliberations or vote. Appellant’s petition for panel

rehearing or rehearing en banc, Dkt. 74, is DENIED.

OPINION

KORMAN, District Judge:

Plaintiff-Appellant Ronald Hittle (“Hittle”) was an

at-will employee of the City of Stockton, California

(the “City”) and served as the City’s Fire Chief from

2005 through 2011. During his tenure, Hittle engaged

in conduct that troubled his employer, and led ultimately

to his termination. The City hired an outside independent

investigator, Trudy Largent (“Largent”), to investigate

various allegations of misconduct. In a 250-page report

referencing over 50 exhibits, Largent sustained almost

all of the allegations of misconduct against Hittle.

Largent’s Report specifically concluded that Hittle:

(1) lacked effectiveness and judgment in his ongoing

leadership of the Fire Department; (2) used City time

and a City vehicle to attend a religious event, and

approved on-duty attendance of other Fire Department

managers to do the same; (3) failed to properly report

his time off; (4) engaged in potential favoritism of

certain Fire Department employees based on a

financial conflict of interest not disclosed to the City;

(5) endorsed a private consultant’s business in violation of City policy; and (6) had potentially conflicting

loyalties in his management role and responsibilities,

including Hittle’s relationship with the head of the

local firefighters’ union. Based on the independent

findings and conclusions set forth in Largent’s report,

the City removed Hittle from his position as Fire Chief.

Hittle sued the City, former City Manager Robert

Deis (“Deis”), and former Deputy City Manager Laurie

Montes (“Montes”) (jointly, “Defendants”) claiming

that his termination was in fact the result of unlawful

employment discrimination in violation of Title VII of

the Civil Rights Act of 1964 (“Title VII”) and California’s

Fair Employment and Housing Act (“FEHA”). Hittle

alleged that Deis and Montes terminated his employment as Fire Chief “based upon his religion.” Specifically,

Hittle alleges that he was fired for attending a

religious leadership event.

On February 18, 2021, Defendants moved for

summary judgment seeking dismissal of all of Hittle’s

claims. Hittle subsequently cross-moved for partial

summary judgment as to his federal and state

religious discrimination claims on April 1, 2021. On

March 1, 2022, the district court denied Hittle’s motion

and granted Defendants’ motion as to all of Hittle’s

claims. Hittle timely appealed.

BACKGROUND

In deciding a motion for summary judgment, we

view the evidence in the light most favorable to the

non-moving party, drawing all reasonable inferences

in that party’s favor See Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). Here, we

recite the facts in the light most favorable to Hittle.

Hittle was the Fire Chief of the Stockton Fire

Department during the period relevant to this appeal.

In that capacity, Hittle initially reported directly to

Gordon Palmer, Stockton’s City Manager. After Palmer

retired in 2009, Hittle began reporting directly to

Montes, who had been appointed Deputy City

Manager in 2008.

In May 2010, the City received an anonymous letter

purporting to be from an employee of the Stockton Fire

Department. The letter described Hittle as a “corrupt,

racist, lying, religious fanatic who should not be

allowed to continue as the Fire Chief of Stockton.” In

her subsequent affidavit in support of her motion for

summary judgment, Montes stated that the source

of this information was not an anonymous individual

but a high-ranking Fire Department manager, who

had told her that “Hittle favored members of that

coalition—who all shared his Christian faith,” and

that her concern was that “Hittle was providing

favorable treatment and assignments” to these other

employees. About one month after the City received

this letter, Montes told Hittle in a meeting that she

had “heard [he] was part of a group of folks, a Christian

Coalition, and that [he] shouldn’t be involved in that.”

When Hittle stated that “[a]s a supervisor, you can’t

tell me I can’t practice my faith when I’m off duty,”

Montes asked him about his “off duty Christian

activities.” Hittle told her that “there was no Christian

clique within the fire department that was meeting

together, nor did she have any right to tell [Hittle]

what [he] could or could not do with respect to [his]

religion while off duty.” According to Hittle, during this

conversation, Montes said that Hittle should not “be a

part of anything like that as the fire chief, and [he]

should refrain from doing any of those types of

activities” with other firefighters. Montes did not

specifically explain what “those type of activities”

comprised, but Hittle thought “the inference was the

fact that I may have meetings with them, I might pray

with them, I may have opportunity to speak to them

about God, leadership in that respect.” Hittle and

Montes are in apparent agreement that Montes did

not initiate the “Christian Coalition” term herself.

On July 1, 2020, Bob Deis became City Manager. At

Hittle’s and Deis’s first meeting, Hittle expressed to

Deis that he is “a religious man” and that he is “a

Christian.” Deis responded with “a blank stare, and

there was a long pause.” Deis’s “body language and

stare made [Hittle] very uncomfortable.” Hittle felt

that Deis’s “coldness and rejection” was because Hittle

had expressed that he was a Christian, and that Deis

had heard about the anonymous letter and the

“Christian Coalition.” Hittle had the “distinct impression”

that Deis’s “mind was already made up about” Hittle.

In her oversight of Hittle, Montes became concerned

about Hittle’s performance as Fire Chief in other

ways unrelated to Hittle’s alleged religious favoritism.

Specifically, Montes claimed that Hittle worked against

the City’s plans to cut public budget costs and expenses,

unlike all of the other City Department heads during

that time who were cooperating with the City Manager’s

office in an ultimately unsuccessful effort to avoid the

City declaring bankruptcy. As another example, in

2010, a proposition referred to as “Measure H” was

slated for the ballot that November. Some members of

the City’s Fire Department opposed Measure H

because they believed that it would undermine Fire

Department autonomy and authority. In response,

several off-duty firefighters visited nursing homes

wearing their on-duty Fire Department clothing and

told the residents that Measure H, if passed, would

prevent the Fire Department from providing timely

services to seniors in the event of an emergency. When

the City Manager’s office received complaints about

10a

on-duty firefighters advocating against Measure H,

Deis and Montes raised the issue with Hittle. Montes

claimed that Hittle agreed that the conduct was not

acceptable but did not make an effort to stop it from

occurring. Hittle disputes this allegation, and states

that “Local 456 owned an antique fire engine that

displayed a banner: ‘Stockton Professional Firefighters,’”

which had been used for many years for campaigning

off-duty prior to the termination of Hittle, with no

objection from management. The union used the

antique fire truck without objection from Human

Resources, Deis, or Montes for holidays and community

events for many years and Hittle had not been

disciplined for the union using the antique fire truck

on off-duty time until 2010, when it was raised by Deis

and Montes for the first time.

In light of these and other issues, including what

Deis believed was Hittle’s failure to “assure that

proper decorum and ethical parameters were in place

and enforced in his Department,” Deis instructed

Montes to continue directly supervising Hittle.

According to Montes, during the fall of 2010, due to

what she “believed was a clear lack of leadership and

management skills displayed by Chief Hittle,” Montes

directed Hittle “to find and attend a leadership

training program.” Montes states that she specifically

directed Hittle to “find a program intended for Fire

Chiefs, or at least designed for the upper management

of public entities,” and was clear to Hittle that she

wanted the leadership training to be related specifically

to public sector service. Montes claims that she

suggested to Hittle that the League of California Cities

may provide such training, and that she was aware

that the Federal Bureau of Investigation and the Post

Officers Standards and Training offered upper man-

11a

agement training programs to police departments

through that group. Hittle stated that he reviewed

various leadership training programs, but was unable

to find any that were in California or at a cost that

the Fire Department could afford. Hittle subsequently

was gifted four tickets to an event called the Global

Leadership Summit (the “Summit”). The Summit was

sponsored by a church, and its registration materials

stated that: “The leadership summit exists to transform

Christian leaders around the world with an injection

of vision, skill Development and inspiration for the

sake of the LOCAL CHURCH.” However, according to

a magazine article in the record, the Summit is a “popup business school” that “bring[s] a stellar faculty . . .

to teach pastors and laypeople leadership and management.” The Summit had “over 60,000 leaders . . .

gather” and was “broadcast live . . . to more than 225

satellite sites across North America.” Previous “speakers

includ[ed] former President Bill Clinton, former

Secretary of State Colin Powell, Jack Welch, and Carly

Fiorina, former CEO of Hewitt-Packard.” The same

magazine referred to the Summit as “learning from

the business world’s best.” Hittle explained that his

“purpose in attending the leadership conference was to

learn leadership principles and enhance leadership

skills that would assist [him] to lead the” fire

department. Hittle also states that there was no policy

that prohibited employees from attending religious

programs while on duty. Along with three fellow

firefighters, Hittle traveled in a City vehicle to

Livermore, California to attend the Summit on August

5 and 6, 2010.

On September 3, 2010, the City received a second

anonymous letter stating that Hittle and other fire

department personnel had “attended a religious

function on city time” using “a city vehicle.” Deis asked

12a

Montes to evaluate the issues raised in the letter.

According to Largent, Deis’s “concern[] about Hittle

attending this event on City time [was] that ‘you

cannot use public funds to attend religious events;

even if under the guise of leadership development. It

is not acceptable.’”

When Montes asked Hittle about the allegations in

the second letter, Montes alleges that Hittle confirmed

that he had attended the Summit on City time,

accompanied by three City firefighters, that they used

a City vehicle to travel to the Summit, and that they

were paid their regular compensation during their

attendance. Montes states that Hittle “continually

insisted that although this Willow Creek Summit did

contain a religious component, there were several

business oriented non-religious speakers,” and that

he “defended his conduct claiming that this was

appropriate leadership training.”

Later, in a meeting with Hittle, Montes “again

brought up the subject of there being a Christian

Coalition in [Hittle’s] department, and that these are

the people [he] associate[s] with.” Montes “told [Hittle]

this wasn’t good, and that [he] should not be doing

this.” She also told him he should not have attended

the leadership training. Hittle told Montes that the

leadership training was the best he had ever attended,

“there[ was] no Christian Coalition,” and “she could

not tell me I can’t practice my religious faith, or with

whom to associate.” Hittle “asserted [his] right to

associate with other Christians and told [Montes] she

had no right to tell [him] what [he] could do on [his]

own time to practice [his] faith.” Hittle stated that

Montes “raised her voice when accusing [him] of

taking part in a Christian Coalition,” and “[w]hen the

term [‘]Christian Coalition[’] was used by [Montes], it

13a

was clear [Montes] was saying it in a pejorative way,

making it clear this was wrong and distasteful to her.”

“Montes did not accept [Hittle’s] explanation” and

continued to ask about Hittle’s “religious activities

including the [Summit].” This is the principal basis for

Hittle’s challenge to the adverse action against him.

Subsequently, on October 15, 2010, the Stockton

Record reported that Hittle co-owned a vacation

property with the Firefighters’ Union President Dave

Macedo (“Macedo”), Fire Marshal Matthew Duaime

(“Duaime”), and retired Fire Captain Allen Anton.

Montes claims that she learned of the conflict only

after the newspaper article was published because

Hittle had not previously disclosed this joint ownership to

City officials. In Montes’s view, this co-ownership

raised questions about Hittle’s impartiality with respect

to “balancing the interests of the union and the taxpayers.”

Montes issued a notice of a confidential investigation to Hittle on November 1, 2010 (identifying five

issues) because of her perception that Hittle had

“issues of non-cooperation and poor management

practices.” Montes stated that even after she issued

the notice of investigation, Hittle continued to engage

in conduct that she found troubling. For example,

Macedo (president of the fire department union)

admitted to providing Health Insurance Portability

and Accountability Act (HIPAA) protected information

to the media in an attempt to influence San Joaquin

County to permit City firefighters to provide advanced

life support at emergency scenes. Montes claims that

Hittle imposed only minor discipline on Macedo and

defended Macedo’s conduct, despite the fact that the

leak resulted in the County suing the City and

obtaining a preliminary injunction.

14a

Montes also discovered that Duaime had falsified

his time records in two ways. First, he had attended

the Summit with Hittle. Second, he would work

overtime and not submit a request for the incurred

compensation, instead “saving” that time and improperly

submitting a request for compensation on a day on

which he had not worked overtime. Hittle defended

Duaime’s practices in a memorandum to Montes dated

March 14, 2011, stating that Duaime had worked all

the hours submitted, and had held accrued time off the

books in order to avoid charging the City overtime.

Montes alleges that Hittle refused to discipline Duaime

until ordered to do so.

In addition, at this time, the City was in the midst

of a fiscal crisis and on the verge of declaring

bankruptcy, and Deis and Montes “instructed all

Department Heads to prepare layoff plans in order to

reduce costs which could potentially help avoid the

bankruptcy.” According to Montes, all Department

Heads complied with this order except Hittle, who

informed Montes that he could not agree to any layoffs

or recommend a cut in staffing. As a result of Hittle’s

failure to follow this directive, Deis and Montes placed

Hittle on administrative leave pending the outcome of

the investigation that had been initiated the previous

November.

On March 25, 2011, the City retained Trudy Largent,

an outside investigator with human resources experience,

to investigate Hittle’s conduct. Largent interrogated

Hittle at length regarding his Christianity and about

the Summit. According to Hittle, the investigation was

one-sided, because Largent did not investigate the

nature of the leadership training provided by the

Summit or contact the witnesses identified by Hittle.

15a

Hittle claims that Largent’s “demeanor and approach

clearly communicated her lack of impartiality.”

On August 5, 2011, Largent submitted to the City

her Confidential Investigation Report (the “Largent

Report”), which totaled over 250 pages and referenced

more than 50 exhibits. In Largent’s interview with

Montes, Montes negatively referred to Christians.

Montes stated: “Incidentally when I told [Hittle] to go

get some leadership training he asked if he [c]ould use

George Liepart and I told him no, he’s one of the

church clique, and I said you know we need to get away

from . . . you know going, going around the same

mountain all the time.” The Largent Report characterized Hittle’s “use of City time and a City vehicle to

attend a religious event” as the first “most serious act[]

of misconduct.” The Largent Report repeated the term

“religious event” over 15 times, and stated that “it

[was] clear that the primary mission of the Global

Leadership Summit was to specifically provide for the

benefit of those of a particular religion, Christianity.”

Indeed, the Largent Report makes clear that one of the

key issues of the Fire Department’s investigation was

on “[w]hether the Global Leadership Summit was a

religious event,” and dedicated five pages to discussing

its religious nature. In these pages, the Largent Report

concluded that when Hittle “arrived at the Summit

location . . . and observed where it was being held [(a

church)] this should have alerted Hittle that his

participation and that of his managers would not be

appropriate.”

In the investigation of whether Hittle engaged in

misconduct and violated City policy or Fire Department

Procedures, the Largent Report made the following

findings (in summary) as to each issue, and determined

16a

whether the City’s allegations were sustained or not

sustained:

1. The lack of effectiveness of Chief Hittle’s

ongoing supervision and leadership of the

Fire Department, judgment as a department

head, and his contributions to the management team; “Sustained.”

2. Chief Hittle’s failure to maintain proper

discipline and order within the Department,

contributing to a delay in investigating

potential misconduct is “Not Sustained.”

The allegation that Hittle has delayed in

making recommendations as to appropriate

level of discipline; “Sustained in part and

Not Sustained in part.”

3. Use of City time and City vehicle by Chief

Hittle to attend a religious event; his failure

to properly report time off, and Hittle

potentially approving on-duty attendance

at a religious event by Fire Department

managers; “Sustained.”

4. Potential favoritism of employees by Chief

Hittle and conflict of interest based on

financial interest not disclosed to the City;

“Sustained.”

5. Apparent endorsement of [a] private

consultant’s business by Chief Hittle as an

official of the City and potential conflict of

interest by Hittle not disclosed to the City;

“Sustained.”

6. Failure by Chief Hittle to comply with

management directions and his capability

17a

in respect to budget development; [“]Not

Sustained.”

7. Potentially conflicting loyalties by Chief

Hittle in his management role, responsibilities, and his relationship with the

Firefighters Local 456 Union; “Sustained.”

After reviewing the Largent Report, Deis and

Montes concluded that Chief Hittle should be removed

from his position. In particular, Montes was concerned

about the various findings that were sustained against

Hittle in the Largent Report, and she and Deis did

not believe that Hittle had provided them with

any indication that he would attempt to correct his

behavior or improve his management skills. Deis and

Montes met with Hittle and offered to appoint Hittle

to a Battalion Chief position so that he could remain

at the fire department until he reached the retirement

age of 50, to which he was relatively close at that time.

Hittle did not accept this offer, and informed Deis and

Montes that he intended to retain counsel and bring

a lawsuit. Hittle stated that “Deis got very angry,”

“raising his voice and threaten[ing]” that if Hittle did

not accept a demotion, he would face “a long expensive

legal battle,” and his “reputation would suffer

irreparable harm.”

On August 24, 2011, the City sent Hittle a notice of

it intent to remove him from City service (the “Removal

Notice”) for the reasons stated in the Largent Report,

which was attached, and which included the following

detailed descriptions of its findings:

1) On August 5 and 6, 2010, you used City

time and resources to attend a religious

leadership event. This conduct violated City

Manager Directive No. FIN-08 and Article C,

18a

Section 11 of the Fire Department Procedures

Manual.

2) On August 5 and 6, 2010, you approved the

attendance on City time of Deputy Chief Paul

Willette, Division Chief Matt Duaime, and

Fire Marshal Jonathan Smith at the same

religious leadership event. This conduct violated

City Manager Directive No. FIN-08 and

Article C, Section 11 of the Fire Department

Procedures Manual.

3) From 2004 through 2008, the City retained

Integrated Services Group to provide consulting services to the fire department. At no time

did you disclose to the City your personal

relationship with the firm’s owner, George

Liepart, or the fact that the two of you were

engaged in a project to build a church school.

Nor did you properly investigate complaints

that in 2005 Liepart solicited donations from

fire department employees for the church

school project. This conduct violated City

policy against conduct adverse to the welfare

and/or good reputation of the City.

4) Despite receiving information in 2009 that

the Integrated Services Group website contained

an endorsement by you under a photograph of

you in your Fire Chief uniform, you failed to

investigate whether the information was true.

This tacit endorsement of Liepart’s firm violated

City policy against conduct adverse to the

welfare and/or good reputation of the City.

5) You failed to disclose to the City that you

co-owned a cabin with Captain Dave Macedo,

also President of International Association of

19a

Firefighters Local 456 (Union), and Division

Chief Duaime. This violated your duty as a

department head to disclose any actual or

potential conflict of interest. Furthermore,

this relationship raises questions as to why

you failed to investigate Duaime’s improper

reporting of compensatory time on his

timesheets for May and August 2010.

6) On March 29 and 30, 2011, you presented

Deputy City Manager Laurie Montes with a

Union proposal to put firefighters on a leave

of absence instead of laying them off. This

conduct was contrary to a department head’s

duty to further the goals and policies of the

City.

7) Your failure to recommend appropriate

discipline for misconduct by Captains Tony

Moudakis [for authorizing on-duty firefighters to

assist his wife with a personal matter] and

John Loverin [for falsifying dates on the

Department’s official pay records] violated

Article 3, section 9 of the Fire Department

Rules and Regulations, which requires you to

“see that proper discipline is maintained.”

8) After the Union released confidential

patient information to the media in 2007, you

failed to address the issue with employees to

prevent a recurrence. When confidential

patient information was again released by the

Union on September 9, 2010 you failed to

address preventative measures with employees.

This conduct violated Article 3, section 9 of

the Fire Department Rules and Regulations.

20a

9) Between July 13, 2010 and October 2010

you failed to prevent members of the public

from perceiving that firefighters were engaged

in Union activities while on-duty. These

activities included: wearing Union t-shirts

that closely resembled official City firefighter

shirts while riding on a fire engine owned by

the Union; using City equipment to clean the

Union hall while on-duty; and asking permission for on-duty personnel to set up for a

Union-sponsored retirement dinner. This

conduct raises doubts about your ability to be

an effective department head and to further

the goals and policies of the City.

10) In the fall of 2010, you told Fire Department

Internal Affairs Investigator Mark Lujan that

firefighters were “upset” with him for

displaying a “Yes on Measure H” sign on his

lawn. This conduct raises doubts about your

ability to be an effective department head and

to further the goals and policies of the City.

The City provided Hittle the opportunity to meet

with a City official and respond to the notice of intent

to terminate. On September 28, 2011, Hittle, joined by

his attorney, met with then-Deputy City Manager

Michael Locke and Assistant City Attorney Michael

Roush. During that meeting, Hittle’s attorney argued

that the investigative report was not objective and

that the meeting did not comport with due process.

Hittle claims that the hearing was a sham, because he

was not given an opportunity to call witnesses or

obtain evidence and was locked out of his email system

and files, and so had no opportunity to meaningfully

defend himself. According to Locke, neither Hittle nor

his attorney “provided any substantive reasons why

21a

[Hittle] should not be removed as Fire Chief.”

Following the meeting, Locke sent a memo to Deis

stating that, based on his review of the Largent Report

and its findings, and because Hittle had not refuted

any of the findings, Locke recommended that Hittle be

removed as Fire Chief. On September 30, 2011, the

City sent Hittle a formal notice of separation from City

service, removing Hittle from his position as Fire Chief

effective as of October 3, 2011.

STANDARD OF REVIEW

Summary judgment is warranted when “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); see also Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250 (1986). We review grants of summary

judgment de novo. Maner v. Dignity Health, 9 F.4th

1114, 1119 (9th Cir. 2021). Viewing the evidence in the

light most favorable to the nonmoving party, we must

determine whether there are any genuine issues of

material fact, and whether the district court correctly

applied the relevant substantive law. See Ass’n des

Éleveurs de Canards et d’Oies du Québec v. Bonta, 33

F.4th 1107, 1113 (9th Cir. 2022).

DISCUSSION

We analyze employment discrimination claims under

Title VII and the California FEHA using the McDonnell

Douglas Corp. v. Green burden-shifting test. See 411

U.S. 792 (1973); Merrick v. Hilton Worldwide, Inc., 867

F.3d 1139, 1145 (9th Cir. 2017) (“Because state and

federal employment discrimination laws are similar,

California courts apply the McDonnell Douglas burdenshifting framework to analyze disparate treatment

claims under FEHA.”). Under this framework, a plaintiff

22a

alleging that an employer engaged in discriminatory

conduct adversely affecting plaintiff’s employment

must establish a prima facie case by demonstrating

that: “(1) he is a member of a protected class; (2) he was

qualified for his position; (3) he experienced an adverse

employment action; and (4) similarly situated individuals outside his protected class were treated more

favorably, or other circumstances surrounding the

adverse employment action give rise to an inference of

discrimination.” Fonseca v. Sysco Food Servs. of Ariz.,

Inc., 374 F.3d 840, 847 (9th Cir. 2004). A plaintiff may

demonstrate an inference of discrimination “through

comparison to similarly situated individuals, or any

other circumstances surrounding the adverse employment action [that] give rise to an inference of

discrimination.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d

1151, 1156 (9th Cir. 2010) (emphasis added) (internal

quotation marks omitted). Similarly, California courts

applying this test in the FEHA context have characterized the fourth element as a showing that “some other

circumstance suggests discriminatory motive.” Guz v.

Bechtel Nat’l Inc., 24 Cal. 4th 317, 355 (2000).

Should the plaintiff set forth a prima facie case, the

burden shifts to the defendant to articulate “a legitimate, nondiscriminatory reason for the challenged

actions.” Freyd v. Univ. of Or., 990 F.3d 1211, 1228

(9th Cir. 2021). If the defendant does so, the burden

“returns to the plaintiff, who must show that the

proffered nondiscriminatory reason is pretextual.” Id.

A plaintiff meets his or her burden “either directly by

persuading the court that a discriminatory reason

more likely motivated the employer or indirectly by

showing that the employer’s proffered explanation is

unworthy of credence.” Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 256 (1981).

23a

Alternatively, a plaintiff can prevail merely by

showing direct or circumstantial evidence of discrimination; he or she does not need to use the McDonell

Douglas framework to establish a prima facie case. See

McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th

Cir. 2004) (holding that a plaintiff “may proceed by

using the McDonnell Douglas framework, or alternatively, may simply produce direct or circumstantial

evidence demonstrating that a discriminatory reason

more likely than not motivated” the employer). However,

“[w]hether a plaintiff establishes her prima facie claim

of disparate treatment using direct or circumstantial

evidence or the McDonnell Douglas factors, ‘once a

prima face case of discrimination has been made, the

burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged

action.’” Opara v. Yellen, 57 F. 4th 709, 723 (9th Cir.

2023) (cleaned up) (quoting E.E.O.C. v. Boeing Co., 577

F.3d 1044, 1049 (9th Cir. 2009)). Moreover, “regardless

of the approach a plaintiff takes . . . —i.e., establishing

the prima facie case via direct or circumstantial

evidence or the McDonnell Douglas factors—once an

employer articulates some legitimate, nondiscriminatory reason for the challenged action, the employee

must show that the articulated reason is pretextual.” Id.

Under Title VII, the plaintiff need only “demonstrate[]

that race, color, religion, sex, or national origin was a

motivating factor for any employment practice, even

though other factors also motivated the [unlawful

employment] practice.” 42 U.S.C. § 2000e-2(m)

(emphasis added). Thus, Hittle must demonstrate that

his religion was “a motivating factor” in Defendants’

decision to fire him with respect to his federal claims,

see id., and that his religion was “a substantial

motivating factor” for his firing with respect to his

24a

FEHA claims, Harris v. City of Santa Monica, 56 Cal.

4th 203, 232 (2013).

On summary judgment, direct evidence of discrimination is that which, “if believed, proves the fact [of

discriminatory animus] without inference or presumption.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095

(9th Cir. 2005). 1 We have concluded that derogatory

comments made by a decisionmaker are “direct

evidence of . . . discriminatory animus” and “can create

an inference of discriminatory motive.” Cordova v.

State Farm Ins. Cos., 124 F.3d 1145, 1149 (9th Cir.

1997). Chief among Hittle’s examples of direct evidence

of discriminatory animus is Montes’s reference to

Hittle being part of a “Christian coalition,” and Montes’s

and Deis’s statements that Hittle was part of a “church

clique” in the Fire Department. Montes responds to

this characterization by noting that a high-ranking

Fire Department manager had complained to her

that there was a “Christian coalition” within the Fire

Department, and that Hittle improperly favored members

of that so-called coalition. Hittle acknowledged that

the term “Christian coalition” came from the anonymous

letters sent to the City criticizing Hittle’s management

of the Fire Department, and not from Montes herself.

In a disparate treatment claim under Title VII, a plaintiff

offering direct evidence of ‘discriminatory animus’ must show

that “the defendant had a discriminatory intent or motive,”

Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 986 (1988), to

“treat[] some people less favorably than others because of their

[protected characteristic],” Int’l Bhd. of Teamsters v. United

States, 431 U.S. 324, 335 n.15 (1977). See also Bostock v. Clayton

Cty., 140 S. Ct. 1731, 1740 (2020) (“[A]n employer who intentionally treats a person worse because of [a protected characteristic]

. . . discriminates against that person in violation of Title VII.”).

25a

Montes’s comments—whether taken in the context

of one conversation with Hittle or during Hittle’s

tenure as Fire Chief as a whole—do not constitute

discriminatory animus. As previously observed, Hittle

and Montes are in apparent agreement that Montes

did not initiate the “Christian coalition” term herself,

and that it originated from other members of the Fire

Department who expressed unhappiness over Hittle

allegedly engaging in favoritism. Cf. Vasquez v. County

of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003), as

amended (Jan. 2, 2004) (finding no direct evidence of

animus where discriminatory remarks were attributed

to a non-decisionmaker employee). Montes’s repetition

of other persons’ use of pejorative terms does not

provide evidence of Montes’s own animus, but rather

shows concerns about other persons’ perceptions. See

id.; cf. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217,

1221 (9th Cir. 1998), as amended (Aug. 11, 1998)

(discussing that there is no direct evidence of animus

if a remark would require an inference or presumption

in an employee’s favor). And although Hittle suggests

that Montes engaged in discrimination by informing

him that the City was not “permitted to further religious activities” or “favor one religion over another,”

these observations do not constitute direct evidence of

discrimination. Rather, they reflect Montes’s legitimate concern that the City could violate constitutional

prohibitions and face liability if it is seen to engage in

favoritism with certain employees because they happen

to be members of a particular religion. See Noyes v.

Kelly Servs., 488 F.3d 1163, 1172 (9th Cir. 2007)

(concluding that a fact finder could reasonably determine that an employer engaged in discrimination by

promoting employees because they were members of a

certain religion); cf. Trump v. Hawaii, 138 S. Ct. 2392,

2417 (2018) (“[T]he clearest command of the Establish-

26a

ment Clause is that one religious denomination cannot

be officially preferred over another.” (quoting Larson v.

Valente, 456 U.S. 228, 244 (1982)) (internal quotation

marks omitted)). In short, because Montes and Deis

did not use derogatory terms to express their own

views, or focus on the religious aspect of Hittle’s

misconduct to express their own animus, but rather

referenced other legitimate constitutional and business

concerns, their terminology does not give rise to a

genuine issue of discriminatory animus. See Davis v.

Chevron U.S.A., Inc., 14 F.3d 1082, 1085–86 (5th Cir.

1994) (per curiam) (indicating that where remarks had

an innocent explanation, they were not evidence of

gender discrimination).

Hittle also claims that the Removal Notice issued by

the City demonstrates direct evidence of discrimination because of its repeated references to Hittle’s

attendance at a “religious event” (i.e., the Summit) and

his approval of other Fire Department employees to

attend. But this does not suggest discrimination,

because the undisputed record shows that the Removal

Notice relied on the findings in the Largent Report,

which concluded that Hittle engaged in misconduct by

attending a two-day event that did not benefit the City

because it was not the sort of leadership conference

aimed at public sector leadership, all while on paid

City time, and approving three others to do likewise.

In other words, the references to Hittle’s misconduct

by attending the Summit are due to a legitimate nondiscriminatory reason—lack of benefit to the City—

rather than to religious animus. It is undisputed that

the Summit, even if a “pop-up business school,” did not

constitute the type of upper management public sector

leadership training that Montes directed Hittle to seek

out, as it did not provide any focus on the management

of public agencies. Montes and Deis could conclude

27a

(whether correctly or incorrectly) that the skills that

the Summit sought to impart were not of any value or

relevance to the three other firefighters whom Hittle

invited to attend the event with him, all of whom also

participated while on City time. Such a view is supported by the registration materials for the Summit,

stating that the purpose of the leadership summit was

to benefit the local church. An employer’s conclusion

that an activity does not benefit the employer is not

discriminatory even if the activity has some relationship to a protected characteristic, such as religion or

race. See Davis, 14 F.3d at 1085–86; see also Jiminez v.

Mary Washington Coll., 57 F.3d 369, 383 (4th Cir. 1995)

(“The crucial issue in a Title VII action is an unlawfully

discriminatory motive for a defendant’s conduct, not

the wisdom or folly of its business judgment.”). “We

cannot infer [religious] discrimination based on factual

allegations that are ‘just as much in line with’ the nondiscriminatory explanation we have identified.” Frith

v. Whole Foods Mkt., Inc., 38 F.4th 263, 276 (1st Cir.

2022) (citation omitted). Where there are “obvious

alternative explanations for the purportedly unlawful

conduct and the purposeful invidious discrimination

plaintiff asks us to infer, discrimination is not a

plausible conclusion.” Id. (cleaned up) (citation and

internal quotations omitted).

Because the employer could discipline Hittle for

attending an event of no benefit to the City (the

“obvious alternative explanation” for identifying the

Summit as problematic), the employer’s discipline of

two of the other Fire Department employees who

attended the Summit with Hittle—both of whom were

also Christian—by “forfeit[ing] two days of vacation to

reimburse the City for the time spent attending the

leadership conference,” is also not discriminatory on

28a

the basis of religion. More important, Hittle did not

point to similarly situated people who attended events

of no benefit to the City who were not disciplined, and

so did not establish that part of his prima facie case.

Finally, Hittle contends that Deis’s declaration in

support of Defendants’ motion for summary judgment

contains statements that are proof of Deis’s animus

towards Hittle’s religion. Deis describes Hittle’s attendance at the Summit as exercising “poor judgment,” and

that Hittle engaged in an “inappropriate activity” that

was simply “for [Hittle’s] own personal interests.” But,

as discussed above, Deis, like Montes, had legitimate,

non-discriminatory reasons to be critical of Hittle

inappropriately using City resources to attend an

event for his personal benefit, and inviting other City

personnel to do the same. 3

Nothing in our case law compels a different result.

Hittle cites to Dominguez-Curry v. Nev. Transp. Dep’t,

424 F.3d 1027, 1039 (9th Cir. 2005), Chuang v. Univ. of

Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1128 (9th Cir.

2000), and Cordova, 124 F.3d at 1149, in arguing that,

in this Circuit, “a single discriminatory comment is

sufficient to preclude summary judgment for the

employer.” The decisionmakers in those cases made

“clearly sexist, racist, or similarly discriminatory

Paul Willette, the third member of the Fire Department to

attend the Summit with Hittle, retired prior to the issuance of the

Largent Report.

Nor does Hittle provide evidence of discrimination—direct or

otherwise—by describing a subjective and self-serving “long

pause” and Deis’s “blank stare” during their first meeting after

Hittle mentioned to Deis that he was a Christian. See, e.g., Clark

Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (per curiam)

(“[I]solated incidents (unless extremely serious) will not amount

to discriminat[ion].” (citation omitted)).

29a

statements or actions by the employer” related to

protected characteristics of the employee. Coghlan,

413 F.3d at 1095. In Dominguez-Curry, plaintiff was

told by a decisionmaker that “women have no business

in construction,” and that “women should only be in

subservient positions,” 424 F.3d at 1031; in Chuang, a

decisionmaker remarked at a meeting that “‘two

Chinks’ in the department were more than enough,”

225 F.3d at 1121; and in Cordova, the decisionmaker

referred to a non-plaintiff employee as a “dumb

Mexican.” 124 F.3d at 1147. None of these cases are

comparable to this case, where the decisionmaker was

making what could only be described as reasonable

inquiries based on allegations of misconduct that

she had concededly received from others in language

comparable to what they used. We are not prepared to

hold that such an inquiry constitutes evidence of direct

discrimination specifically or discrimination generally.

Even if the quoted remarks are perceived as

pejorative by Hittle, our precedent does not dictate a

contrary result. The statements by Montes and Deis

are more akin to “stray remarks that have been held

insufficient to establish discrimination.” Cordova, 124

F.3d at 1149. And this evidence falls within the ambit

of circumstantial evidence that requires an additional

logical leap that is not supported by the record here.

See Coghlan, 413 F.3d at 1095-96 (discussing the

difference between direct and circumstantial evidence,

with circumstantial evidence requiring “specific and

substantial” evidence to defeat summary judgment).

Therefore, discriminatory remarks made by a decisionmaker must be “clearly sexist, racist, or similarly

discriminatory” to create an inference of discriminatory motive. Here, the decisionmaker was merely

conducting an inquiry based on complaints by third

parties and the “obvious alternative explanation,” Frith,

30a

38 F.4th at 276, for using those pejorative terms was

that the decisionmaker was quoting the third parties.

Finally, because neither Montes nor Deis made any

remarks demonstrating their own discriminatory

animus toward religion—i.e., an intent to treat Hittle

worse because he is Christian—but focused on the

Summit’s lack of benefit to the City and other evidence

of Hittle’s misconduct, Hittle failed to demonstrate

that discriminatory animus toward religion was even

a motivating factor in his termination.

On summary judgment, circumstantial evidence of

discrimination “must be ‘specific’ and ‘substantial.’”

France v. Johnson, 795 F.3d 1170, 1175 (9th Cir. 2015)

(citation omitted), as amended on reh’g (Oct. 14, 2015).

Hittle merely offers conclusory and unsupported

examples of circumstantial evidence of religious

animus by Defendants.

Hittle alleges that on the day he received the notice

of investigation from the City, he met with Deis, who

angrily threatened Hittle to accept a demotion or

face a long, expensive legal battle in which Hittle’s

reputation would suffer irreparable harm. Viewing

Hittle’s account of this meeting in the light most

favorable to him still does not suggest any reasonable

inference of religious animus, because there is no

evidence in the record that Hittle’s religion was

discussed during this meeting.

Nor does the timing of Hittle being placed on

administrative leave raise a showing of religious

animus. As noted above, Hittle was placed on leave on

March 30, 2011, shortly after the City retained

Largent to conduct the investigation. Hittle claims

that this decision was a result of an article published

31a

in a local newspaper on March 25, 2011, stating that

Hittle had attended the Summit and noting its

religious nature. But at the time Hittle was placed on

leave, he had already been on notice for almost five

months that he was under investigation for actions

relating to attending the Summit and other misconduct.

During this time, the record is replete with evidence

that, despite knowledge of the City’s impending

investigation, Hittle continued to engage in conduct

that was of serious concern to the City, including

defending Union President Macedo’s leak of confidential

HIPAA data, refusing to discipline Duaime for improper

overtime practices, and refusing to prepare a layoff

plan or recommend staffing cuts for the Fire Department

during the City’s fiscal crisis, in spite of directives from

Deis and Montes to do so—the latter two issues both

memorialized in memoranda prepared by Hittle and

sent to Montes on March 14, and 16, respectively. In

short, Hittle fails to raise specific or substantial facts

regarding the timing of his being placed on administrative leave that reasonably link that event to the

article noting Hittle’s attendance at the Summit, let

alone evidence of religious discrimination by Defendants.

Hittle also contends that certain findings in the

Largent Report present evidence of pretext because

the investigation deemed as “not sustained” certain

instances of Hittle’s misconduct alleged by the City.

But the fact that the Largent Report sustained the

findings relating to misconduct in attending the

Summit but did not sustain the City’s allegations as to

a few of the investigation’s numerous issues does not

show that the other allegations were pretexts and the

real reason was discriminatory animus toward religion.

Moreover, the Largent Report itself explains that

issues deemed “not sustained” indicates that the

“investigation disclose[d] that there was insufficient

32a

evidence to sustain the complaint or fully exonerate

the employee” (emphasis added), as opposed to

concluding that the issue was “unfounded” (meaning

that the “investigation disclose[d] that the alleged

act(s) did not occur or did not involve department

personnel”), or “exonerat[ing]” Hittle on the issue

(meaning that the “investigation disclose[d] that the

alleged act occurred, but that the act was justified,

lawful, and/or proper”). More significantly, Largent

Report sustained what it characterized as the “most

serious acts of inappropriate use of City time and a

City vehicle to attend the Summit (which it characterized as a religious event) and Hittle’s failure to disclose

his personal relationships and corresponding financial

interests with respect to George Liepart and Union

President Macedo.

Simply put, the summary judgment record does not

contain evidence to raise genuine issues of material

fact sufficient for Hittle to meet his burden to

demonstrate that Defendants’ legitimate non-discriminatory reasons for firing him were mere pretext for

religious discrimination. Even though an aspect of

Largent’s Report and the notice terminating Hittle

was the religious nature of the leadership event, a

nexus to a protected characteristic is not enough to

preclude summary judgment for the employer. There

is no genuine issue of material fact that Montes and

Deis were motivated by discriminatory animus toward

religion, as opposed to concern about the perception of

others. And the facts that Hittle identifies as circumstantial evidence of discriminatory pretext are

neither specific nor substantial enough to support a

finding of unlawful employment discrimination.

33a

As Defendants observe, in addition to Hittle’s

improper attendance at the Summit as one justification for removing him from City service, the City

“articulated an overwhelming number of [other] nondiscriminatory reasons for terminating Hittle’s employment, which were independently verified by an outside

investigator.”

Hittle’s post hoc effort to cast the findings of

misconduct in the Largent Report as mere pretext for

discriminatory termination is unsupported by the

record. For example, Hittle claims that he had discussed

his co-ownership of the vacation cabin with a City

attorney, who advised him that he did not need to

disclose it to the City. But the record is clear that Hittle

did not inform Largent about this conversation during

her investigation, and in his interview with Largent,

nor did he do so when he and his attorney were given

the opportunity at his pre-termination meeting on

September 28, 2011. Hittle stated that he did not

disclose to the City that he was a co-owner of the cabin,

together with three other Fire Department officials,

because he did not see a conflict of interest.

Nor does Hittle persuasively argue that the City’s

identification of his improper endorsement of Liepart’s

consulting business was pretextual. Hittle claims that

the City did not have a specific policy prohibiting such

an endorsement, but Hittle told Largent in an

interview that he understood it was City practice for

its officials to not endorse private businesses. And, as

Defendants observe in their brief, an employer does

not need to identify a specific policy violation to fire an

at-will employee. See Guz, 24 Cal. 4th at 351–53.

34a

Hittle is no more successful in providing summary

criticism of the allegations that he did not cooperate

with the City during its financial crisis, promoted

union interests at the expense of City welfare, and

failed to discipline firefighters for misconduct. And,

even viewing these facts in the light most favorable to

Hittle, it is not sufficient for plaintiff on summary

judgment to merely “show the employer’s [termination]

decision was wrong, mistaken, or unwise.” Dep’t of Fair

Emp. & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 746

(9th Cir. 2011) (quoting Morgan v. Regents of Univ. of

Cal., 88 Cal. App. 4th 52, 75 (2000)).

Similarly, Hittle’s challenging various findings in

the Largent Report as “unfounded” (or downplaying

their seriousness) is insufficient to raise a triable issue

of fact as to pretext. In this respect, Hittle is simply

offering his own subjective viewpoint as to his ability

to effectively manage the Fire Department, but “an

employee’s subjective personal judgments of [his]

competence alone do not raise a genuine issue of

material fact.” Bradley v. Harcourt, Brace & Co. 104

F.3d 267, 270 (9th Cir. 1996); accord Buhl v. Abbot

Labs., 817 F. App’x 408, 410–11 (9th Cir. 2020)

(memorandum disposition) (noting that “technical

disagreements” with a manager and plaintiff’s “own

subjective belief that [his employer’s] concerns about

his performance were overblown are insufficient to

raise a genuine issue of fact”).

Because Hittle has not met his burden to overcome

Defendants’ motion for summary judgment on his

affirmative discrimination claim, Hittle’s claim for the

City’s failure to prevent discrimination in violation of

Cal Gov’t Code § 12940(k) likewise fails. There is no

stated claim for failure to prevent discrimination if no

35a

discrimination occurred. See Trujillo v. N. Cty. Transit

Dist. 63 Cal. App. 4th 280, 288–89 (1998) (holding that

the statutory language of § 12940 does not “support[]

recovery on . . . a private right of action where there

has been a specific factual finding that [the alleged]

discrimination or harassment actually occurred at the

plaintiffs’s workplace”)

CONCLUSION

To summarize, we hold that, based on the record

before us, the district court’s granting of summary

judgment in Defendants’ favor was appropriate where

Defendants’ legitimate, non-discriminatory reasons for

firing Hittle were, in sum, sufficient to rebut Hittle’s

evidence of discrimination, and Hittle has failed to

persuasively argue that these non-discriminatory

reasons were pretextual. When discriminatory remarks

are merely quoting third parties and the real issue is

public perception or other forms of misconduct (such

as engaging in an activity that does not benefit the

employer), there is no genuine issue of material fact

that the employer was discriminatory. For the foregoing

reasons, the judgment of the district court is AFFIRMED.

36a

CALLAHAN, Circuit Judge, with whom Judge VANDYKE

joins, dissenting from the denial of rehearing en banc:

I join my dissenting colleagues’ concern that the

panel’s opinion fails to follow the Supreme Court’s

directive prohibiting discrimination based on religion.

Accordingly, I join Judge Ikuta’s dissent and sections

I, II, III, and IV (A) of Judge VanDyke’s dissent.

In addition, I fear that the panel’s opinion will be

read to foreclose claims of discrimination for all

protected classes because our court continues to give

lip service to the Supreme Court directive that we view

evidence in the light most favorable to the nonmoving

party. It is the province of the jury, and not judges, to

decide disputed issues of fact. Tolan v. Cotton, 572 U.S.

650 at 651, 656 (2014). That did not happen here.

Title VII actions will never be properly determined by

juries if judges grant summary judgments by crediting

employers’ allegedly “nondiscriminatory” termination

reasons instead of viewing the facts in favor of the

employees alleging discrimination. A plaintiff needs to

only produce “very little” evidence of the employer’s

discriminatory intent to move past summary judgment.

Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d

1115, 1128 (9th Cir. 2000). Even if the panel’s approach

to religious discrimination were correct—which it is

not—the burden of production was met here, so this

case should have proceeded to a jury.

37a

IKUTA, Circuit Judge, joined by CALLAHAN and R.

NELSON, Circuit Judges, dissenting from denial of

rehearing en banc:

In this case, we affirmed the district court’s decision

granting summary judgment to the City of Stockton

because Ronald Hittle’s evidence of a discriminatory

motive was insufficient to create a genuine issue of

material fact. I joined the opinion, but also voted in

favor of rehearing this case en banc because our

conclusion is in tension with other Ninth Circuit Title

VII cases which have held that “[a]s a general matter,

the plaintiff in an employment discrimination action

need produce very little evidence in order to overcome

an employer’s motion for summary judgment.” Chuang

v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124

(9th Cir. 2000); see also Dominguez-Curry v. Nev.

Transp. Dep’t, 424 F.3d 1027, 1039 (9th Cir. 2005)

(“[W]e have repeatedly held that a single

discriminatory comment by a plaintiff’s supervisor or

decisionmaker is sufficient to preclude summary

judgment for the employer.”). In my view, we should

have taken this case en banc to correct this dilution of

the summary judgment standard. Our failure to do so

in this case, however, does not mean that employers

are entitled to a more generous summary judgment

standard when they engage in discrimination on the

basis of religion than when they engage in other sorts

of discrimination.

38a

VANDYKE, Circuit Judge, joined by CALLAHAN,

Circuit Judge, as to Parts I, II, III, and IV(A), dissenting

from the denial of rehearing en banc:

Consider this story: A city receives an anonymous

letter about its police chief—a lesbian and a multidecade veteran of the force—accusing her of being a

“lying, corrupt, radical gender ideologue and LGBTQ

fanatic.” Some of her coworkers regularly employ such

language to criticize he and other gay and lesbian

officers in the precinct, calling them things like “the

lesbian clique” and “the Rainbow Coalition.”

After a change in city leadership, she is called into

her supervisor’s office. One might hope that her

supervisor scheduled the meeting to express concern

about the inappropriate rhetoric. Instead, the supervisor

admonishes the chief for being part of the “Rainbow

Coalition.” The supervisor repeats that derogatory

term (and others), telling the chief that “this wasn’t

good” and she “shouldn’t be involved in that.” The

chief’s perceived affiliation with the “Rainbow Coalition”

is not the only source of friction between her and her

supervisor, who suggests the chief should seek out

some leadership training.

The city is broke, so it can’t pay for any such

training. But at this point, the chief benefits from a

stroke of good luck. In just a few weeks, a prominent

national leadership summit will be held within driving

distance of the city. Though it does not cater exclusively to the LGBTQ community, the summit is hosted

by a gay-rights advocacy group, and its mission is “to

transform gay and lesbian leaders for the sake of the

LGBTQ community.” The chief attends the summit

with other police officers from her precinct, all of whom

are gay or lesbian. She drives the group there in her

work vehicle. The group does not take time off from

39a

work, which is standard practice for such training, but

each officer pays for their own ticket.

After the summit, the police chief is again called into

her supervisor’s office and presented with another

anonymous letter. This one faults her for “using a city

vehicle and attending an LGBTQ function on city

time,” which the letter labels a “gross misuse of city

finances.” Her supervisor again expresses deep concern

with the chief, angrily accusing her of being part of

this so-called “Rainbow Coalition.” The relationship

deteriorates, and the city opens an investigation. The

investigator’s report criticizes the LGBTQ-centric identity

of the leadership training no less than ten times and

labels the chief’s attendance as one of her “most

serious acts of misconduct.”

The chief is fired. During the litigation that follows,

her supervisors devise numerous, contradictory explanations for the decision. The explanations include

legally incorrect statements like “the city is legally

prohibited from contributing to or participating in

activities in furtherance of the LGBTQ community”

and outright discriminatory statements like “the LGBTQcentric mission of the summit means that it is of no

value to the City.”

Does this sound like the firing was based, at least in

part, on the police chief’s sexual orientation? If so, read

on. I’m willing to bet that you’ll likewise conclude that

the City of Stockton has discriminated against its

former fire chief, Ronald Hittle, because of his religion.

Like the hypothetical employer described above, the

City of Stockton’s management frequently parroted

derogatory and insulting terms coined by others to

criticize Chief Hittle’s Christian faith. Although they

now say they did so under the guise of “show[ing]

40a

concerns about other persons’ perceptions,” Hittle v.

City of Stockton, 76 F.4th 877, 888 (9th Cir. 2023), the

Supreme Court has already rejected “a ‘modified

heckler’s veto, in which ... religious activity can be

proscribed’ based on ‘perceptions’ or ‘discomfort.’”

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 535

(2022) (quoting Good News Club v. Milford Cent. Sch.,

533 U.S. 98, 119 (2001)).

The discriminatory conduct did not end there.

Hittle’s direct supervisor, Laurie Montes, admitted on

the record that in her view, Hittle’s attendance at the

Global Leadership Summit—a national Christian

leadership training program—provided no benefit to

the City for the precise reason that the Summit provided

leadership training from a Christian worldview. But

the Supreme Court has long held that singling out

religious viewpoints simply because they are religious

is per se discriminatory and risks “fostering a pervasive

bias or hostility to religion.” Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819, 846 (1995).

Finally, both Montes and the City Manager, Bob

Deis, opined that Hittle was wrong to attend the

Global Leadership Summit “because the City is not

permitted to further religious activities.” This explanation “rest[s] on a mistaken view that it had a duty to

ferret out and suppress religious observances.” Kennedy,

597 U.S. at 544. If such logic had any remaining

purchase before Kennedy, it certainly shouldn’t have

had any now. But notwithstanding the Supreme

Court’s repeated attempts to rid our Establishment

Clause jurisprudence of the endorsement test, it

apparently lives on in the Ninth Circuit.

Does anyone seriously doubt that if the plaintiff in

this case were as described in the initial hypothetical

above, this court would have failed to rehear this case

41a

en banc? Hittle produced ample evidence of the City’s

intent to discriminate and under this court’s caselaw,

that is enough to at least survive the summary judgment stage. See Cordova v. State Farm Ins. Cos., 124

F.3d 1145, 1150 (9th Cir. 1997). It’s difficult to explain

the difference in treatment here by anything other

than a continued willingness to permit “purg[ing] from

the public sphere anything an objective observer could

reasonably infer endorses or partakes of the religious.”

Kennedy, 597 U.S. at 535.

In its stubborn insistence on ruling against Chief

Hittle, the panel has twisted the record into knots and

badly misstated Title VII law. Its decision (1) abdicates

its responsibility to read the record in the light most

favorable to Hittle at the summary judgment stage;

(2) allows employers to escape liability for repeating

discriminatory remarks simply by hiding behind those

who say them first and (3) mangles Title VII’s “motivating

factor” analysis. Perhaps most glaringly, its original

opinion also incorrectly heightened the showing a

plaintiff is required to make to demonstrate disparate

treatment. In the panel’s view, Hittle bore the burden

of showing that the City’s discriminatory conduct was

“motivated by religious hostility,” Hittle, 76 F.4th at

892, notwithstanding the Supreme Court’s admonition

that such a plaintiff need only show he was “intentionally treat[ed] ... worse because of” a protected

characteristic, Bostock v Clayton County, 590 U.S. 655,

658 (2020) (emphasis added).

Recognizing at least this last mistake, the panel’s

amended opinion retires its former use of the word

“hostility,” replacing it with the more accurate (but less

specific) “discriminatory animus.” Not only do those

changes not fully fix the original opinion’s legal errors,

but they also put the panel, which apparently remains

42a

as determined as ever to rule against Hittle, in a

pickle. Notwithstanding its many other errors, the

original opinion correctly acknowledged that the

“gravamen” of the “notice terminating Hittle was the

religious nature of the leadership event.” Hittle, 76

F.4th at 892. But if attendance at a religious event was

the “gravamen” of the firing and Hittle need only show

that he was “intentionally treat[ed] ... worse because

of” religion, Bostock, 590 U.S. at 658, it would seem the

panel would have no choice but to reverse its previous

decision in favor of the City.

But it won’t. Instead of simply accepting the inevitable

effect of its prior errors and ruling for Hittle, the panel

attempts to quietly paper over them by revising its

view of the underlying facts. Now we are told that the

“religious nature of the leadership event” was merely

an “aspect” of Hittle’s firing, not its “gravamen.” One

might reasonably expect some kind of explanation for

the panel’s convenient revelation on this dispositive

issue of fact, but none is forthcoming. This willingness

to improperly reinvent the facts of this case against

Hittle to justify a past outcome is not a good look for

our court—particularly when we have a well-established obligation to read the facts in Hittle’s favor at

this stage of the case.

In short, the panel’s modifications in the amended

opinion merely attempt to hide meaningful changes to

the logic of its decision behind a few unassuming and

unhelpful changes in verbiage. The amended opinion

twists the record into even worse knots to reach an

obviously wrong conclusion, and it continues to badly

misstate both religious liberty and Title VII caselaw.

These errors will not be without consequences, and

ironically, many of those consequences will be felt by

members of protected classes other than Christians

43a

like Chief Hittle—including women and racial, religious,

and sexual minorities (unless our court sub silentio

applies two different standards). We should have

reheard this case en banc to bring it in line with the

Supreme Court’s religion precedents, set the record

straight, and undo the damage it has done to our Title

VII caselaw. I respectfully dissent.

In Title VII cases, “we begin, not surprisingly, with

the text of the statute.” Costa v. Desert Palace, Inc., 299

F.3d 838, 859 (9th Cir. 2002) (en banc), aff’d, 539 U.S.

90 (2003). Under Title VII, it is “an unlawful employment practice for an employer ... to discriminate against

any individual ... because of such individual’s ... religion.”

42 U.S.C. § 2000e-2(a)(1). “[A]n unlawful employment

practice is established when ... religion ... was a motivating

factor for any employment practice, even though other

acts also motivated that practice.” Id. § 2000e-2(m)

(emphasis added). Religion is defined broadly to include

“all aspects of religious observance and practice, as

well as belief.” 42 U.S.C. § 2000e(j).

This court usually analyzes discrimination claims

using the burden-shifting standard laid out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). But

“nothing compels the parties to invoke” McDonnell

Douglas, which is just “a useful tool to assist plaintiffs

at the summary judgment stage ” McGinest v GTE

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

and internal quotation marks omitted). “[A]lternatively,”

a plaintiff “may simply produce direct or circumstantial evidence demonstrating that discriminatory

reason more likely than not motivated” the

discrimination. Id. That is what Hittle did here.

“[D]iscriminatory remarks ... create a strong inference

of intentional discrimination,” Mustafa v. Clark Cnty.

44a

Sch. Dist., 157 F.3d 1169, 1180 (9th Cir. 1998), and

Title VII plaintiffs are usually “required to produce

‘very little’ direct evidence of the employer’s discriminatory intent to move past summary judgment.”

Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d

1115, 1128 (9th Cir. 2000) (citation omitted).

After a plaintiff has adduced such evidence, “the

burden shifts to the defendant to articulate a “legitimate, nondiscriminatory reason for its employment

decision.” Cordova, 124 F.3d at 1148. But when a

plaintiff introduces “direct or circumstantial evidence

of discriminatory intent, he will necessarily have raised

a genuine issue of material fact with respect to the

legitimacy or bona fides of the employer’s articulated

reason for its employment decision. Id. at 1150 (9th Cir.

1997) (citation omitted). Such a plaintiff will therefore

have at least satisfied his summary judgment burden.

As explained below, this record includes ample direct

and circumstantial evidence of Montes’s and Deis’s

discriminatory intent, which the panel should have

recognized as more than sufficient to meet Hittle’s

burden at the summary judgment stage. It did not do

so because, though it recognized its obligation to “view

the evidence in the light most favorable to the nonmoving party,” Hittle, 76 F.4th at 880, it abandoned

that duty wholesale. Its recounting of the facts focused

at length on disputed facts favoring the City, repeatedly

credited the City’s version of events over Hittle’s, and

ignored other undisputed facts favoring Hittle. To set

the record straight—and to recount the significant

evidence of discriminatory intent that Hittle’s supervisors displayed toward his religion—the following

background states the facts in the light most favorable

to Hittle, as our standard of review requires.

45a

II.

At the time he was fired, Hittle served as the Chief

of the Stockton Fire Department. He reported directly

to Montes, a deputy city manager, and finally to Deis,

the City Manager. In May 2010, the City received an

anonymous letter criticizing Hittle’s performance,

and accusing him of being a “religious fanatic.” The

City had received similar letters in the past, but a

prior City Manager had a written policy against

investigating them.

Montes and Deis took a different tack. During a

meeting with Hittle, Montes told him that “she heard

[he] was part of a group of folks, a Christian Coalition.”

Montes did not bring up the “Christian Coalition” to

sympathize with the discriminatory remarks Hittle

was facing. Instead, she admonished him that he

“shouldn’t be a part of anything like that as the fire

chief” and “should refrain from doing any of those

types of activities.” Though Montes did not say what

types of “activities” were disallowed, Hittle understandably took her to mean that she did not want him

“pray[ing] with” any of his firefighters or “speak[ing] to

them about God.”

Though the provenance of the term “Christian

Coalition” is unknown, it is at least clear that the

moniker was pejorative. Another firefighter in the

department explained that he “began to hear firehouse

chatter about the Bible Thumpers, or the Christian

Coalition.” “Within the department,” he explained,

“people are always trying to lump you into a group and

make fun of you. The term was not intended to be

complimentary.” Despite its negative connotation,

Montes used the term in reference to Hittle several

times. In his first meeting with Deis, Hittle deduced

46a

from Deis’s cold demeanor that Deis had prejudged

him having “already seen the anonymous letter and

heard from Montes about [his] being part of a

Christian Coalition.”

To be sure, the statements about the supposed

“Christian Coalition” were not the only source of

friction between Hittle and his superiors. As the panel

opinion labor mightily to recount, city management

also expressed concern about other aspects of Hittle’s

job performance. See Hittle, 76 F.4th at 881–82.

Though many of these concerns were eventually listed

as bases for his termination alongside the allegations

pertaining to religion, the religious allegations were

listed first and featured prominently in the City’s

reasoning and thus could accurately be described as

“the gravamen” of the report that led to Hittle’s firing.

Indeed, in its original opinion, the panel expressly

adopted this characterization. Hittle, 76 F.4th at 892.

But in the panel’s amended opinion it has inexplicably

downgraded the religious allegations to a mere “aspect”

of the report. The panel provides no explanation for its

revision. But one thing is for sure: it was right the first

time.

At least in part because of these perceived faults,

Montes advised Hittle to obtain leadership training.

The parties hotly contest the details of this request.

While Monte contends that she “directed that [Hittle]

find and attend a leadership training program,”

suggesting a mandate, Hittle disagrees, asserting that

Montes only “recommended” and “encouraged” him to

do so. Not only do the parties dispute the extent to

which such training was mandated, they also bicker

about the specific kind of training Montes asked Hittle

to obtain. Montes testified that she “very specifically

directed that he find a program intended for Fire

47a

Chiefs, or at least designed for the upper management

of public entities.” But on this point, too, Hittle tells a

different story. When specifically asked whether Montes

“wanted [him] to attend fire leadership training,”

Hittle responded only that she “wanted [him] to attend

leadership training.” Then, when asked a follow-up

question about whether “she wanted you to attend

leadership training similar to what the police officers

did,” Hittle again disagreed, saying, “Yeah. She was—

no, it was more of a surprise that they didn’t provide

or there was no mandate ... to have continuing

education.” Notwithstanding its obligation to do the

opposite at the summary judgment stage, the panel

wrongly credited Montes’s testimony on these disputed

issues over Hittle’s. Id. at 882. 1

At the time Montes encouraged Hittle to attend a

training, Stockton faced a severe budget crisis that

would eventually lead to its bankruptcy. Because the

budget was tight, Hittle found it difficult to secure a

training option like the ones he had attended in the

past. While Hittle was struggling to find affordable

options, he learned that an annual faith-based leadership

conference, the Global Leadership Summit, was being

held in a nearby city.

There is no dispute that the Summit is religiously

affiliated. It “exists to transform Christian leaders

around the world with an injection of vision, skill,

development and inspiration for the sake of the local

church.” It was held at a church and attended by many

pastors, and it intentionally weaves both religious and

secular content into its programming. The Summit’s

Worse, it used its resolution of this factual dispute in the

City’s favor to resolve a key legal issue in the case against Hittle.

See id. at 889.

48a

speakers typically include pastors, famous business

leaders, politicians, and authors. 2

Hittle attended the Summit alongside three other

Fire Department leaders. Each attendee paid their

own way to the conference, and the only costs incurred

by the City were the use of Hittle’s work vehicle and

the regular salaries of the employees for their two days

of attendance. None of the employees took leave to

attend the conference, and each “still took all [their]

emails and all [their] phone calls.” While there, the

group noticed another fire chief in attendance and

wearing his uniform.

After the Summit, the City received a second anonymous letter complaining that Hittle “used a city vehicle

and attended a religious function on city time,” which

the letter characterized as “a gross misuse of city

finances.” In response, Montes again invoked the

specter of the “Christian Coalition,” telling Hittle that

his perceived participation in it “wasn’t good, and that

[he] should not be doing this.” Hittle described their

conversation as “very heated”—“the angriest argument

the two of us ever had.” Montes “raised her voice,” and

“it was clear she was saying [the term ‘Christian

Coalition’] in a pejorative way, making it clear this was

wrong and distasteful to her.”

The City then opened a lengthy misconduct inquiry

into Hittle that closely scrutinized his religious affiliaIn addition, the Global Leadership Summit has submitted an

amicus brief supporting Hittle that elaborates on its Christian

affiliation. In the brief, the Summit describes itself as “a faithbased organization,” and it considers its Christian character to be

one of its great strengths. In its view, “the Summit is a valuable

resource to leaders in all areas … because, not despite … [its]

moral foundations.”

49a

tions and his attendance at the Summit. During the

investigation, Deis expressed his view that “[i]t is not

acceptable” to “use public funds to attend religious

events; even if under the guise of leadership development,” and Montes averred that the Summit’s purpose

to “transform Christian leaders” did not “provide ‘a

specific benefit’ to the City.” 3 Both also used the

derogatory term “Christian clique” to describe Hittle’s

relationships with other Christian firefighters in the

department.

Perhaps most damning to the City’s cause is the

substance of the lengthy final report the investigator

eventually published, forty-seven pages of which were

devoted to the allegations pertaining to Hittle’s religion.

Two of the four “most serious acts of misconduct”

described in the report pertained explicitly to the religious

nature of the Summit, and its conclusions expressly

invoked religion no less than ten different times.

The report echoed Deis’s and Montes’s concerns that

“[t]he City is legally prohibited from contributing to or

participating in activities in furtherance of religion”

and that Hittle’s attendance at the Summit was not for

“the benefit of the City.” At one point, the report even

went so far as to say that “[i]t is the concern of the City

that the Global Leadership Summit was a religious

These admissions directly contradict other aspects of Deis’s

and Montes’s declarations, where they both assert that the fact

that the Summit was a Christian conference was irrelevant to

their analysis. They are impossible to square with the abovequoted remarks. Either the religious nature of the Summit factored

into the analysis, or it didn’t. The City cannot have it both ways,

and at the summary judgment stage the panel should have credited

those portions of the testimony that favor Hittle, not the City.

50a

based event.” After the report was published, the City

notified Hittle of its intent to fire him. The notice

incorporated the conclusions of the investigator’s report,

and like the report, it expressly invoked Hittle’s

religious affiliations and his attendance at the Summit.

Hittle was fired soon thereafter.

Having now reviewed this evidence, it should not be

terribly difficult for the reader to see how the record

could sustain a reasonable inference that the City fired

Hittle at least in part because of his religion, as Title

VII broadly defines that term. Montes repeatedly

questioned Hittle regarding his religious affiliations

and his attendance at a Christian event. On multiple

occasions, she demanded that he damper his religious

activity with fellow Christians in the workplace. Both

Montes and Deis repeated pejorative terms that were

clearly intended to be derogatory, and they did so in a

manner suggesting they shared the discriminatory

feelings of the anonymous agitators in the Fire

Department who coined them.

When the City received letters containing even more

inflammatory language, Montes again directed her ire

at Hittle for being perceived as part of this “Christian

Coalition.” In the lengthy misconduct investigation

that followed, the investigator closely scrutinized

Hittle’s faith. As the panel previously recognized, but

now chooses to ignore, the religious nature of the

Summit was the “gravamen” of the investigator’s final

report. Hittle, 76 F.4th at 892. When compared to the

“very little” evidence of discrimination a Title VII

How much more clearly can one expect the City to state the

nature of its concerns, if a statement that begins with, “It is the

concern of the City that ...” is insufficient?

51a

plaintiff must produce at this stage, Chuang, 225 F.3d

at 1128, this evidence—much of which is admitted to

by the City—more than suffices to create a fact dispute

regarding the City’s motives for firing Hittle.

Several of our sister circuits have reached similar

conclusions in similar cases. In Venters v. City of

Delphi, for example, the Seventh Circuit explained

that “remarks and other evidence that reflect a propensity by the decisionmaker to evaluate employees

based on illegal criteria will suffice as direct evidence

of discrimination even if the evidence stops short of

a virtual admission of illegality.” 123 F.3d 956, 973

(7th Cir. 1997). Venters included a few “obvious and

compelling example[s],” including “remark[s] to the

effect that ‘I won’t hire you because you’re a woman,’

or ‘I’m firing you because you’re not a Christian.’” Id.

at 972–73. Though the Venters court ultimately ruled

against the Title VII plaintiff, the remarks in this

case—that Hittle was wrong to be part of a Christian

Coalition and that a Christian leadership training was

of no value to the City—are not meaningfully different

from the “obvious and compelling example[s]” discussed

in Venters.

The Eighth Circuit’s decision in Brown v. Polk County,

Iowa, is even more directly on point. 61 F.3d 650 (8th

Cir. 1995). There, Brown, a former county employee

“who identifie[d] himself as a born-again Christian,”

sued his employer, alleging he was fired on account of

his religious activities. Id. at 652. Before Brown’s

firing, the county administrator reprimanded him for

“participating in activities that could be construed as

the direct support of or the promotion of a religious

organization or religious activities utilizing the resources

of Polk County Government” and directed him to cease

any activities that “could be perceived as to be support-

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ing a religious activity or religious organization.” Id. at

652–53.

The district court concluded that Brown “had offered

no direct evidence that he was fired on account of his

religious activities,” but the Eighth Circuit reversed,

concluding that the “reprimand, which was based on

religious activities,” clearly demonstrated that religion

“was ‘a factor’ in [the] decision to fire” him. Id. at 657.

Here, as in Brown, there is ample evidence demonstrating that Hittle’s religious activities—including

his association with other Christians in the Department

and his attendance at the Summit—factored into his

firing.

In my view, this record is so thoroughly stacked

against the panel’s framing of this case as to speak

with an almost unanimous voice against it. Indeed,

there is a strong argument to be made that it is

Hittle—not the City—who was entitled to summary

judgment here. That the panel continues to ignore

such overwhelming evidence in Hittle’s favor is a

testament to the extent to which it has wholly abrogated its responsibility to view the facts in Hittle’s favor.

III.

Because Hittle introduced direct and circumstantial

evidence demonstrating that the City intentionally

discriminated against him because of his religion, the

panel should have recognized that he had at least

created a fact issue as to the City’s motives and

stopped there. See Cordova, 124 F.3d at 1150. It did

not do so. Instead, it proceeded forward with an

examination of the City’s proffered mot

This text is long and has been trimmed here. Open the source document for the complete record.

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.