Petition for Writ of Certiorari — Brian Armstrong, Petitioner v. WB Studio Enterprises, Inc., et al.

Supreme Court briefMar 26, 2026

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No. 25-____

IN THE

Supreme Court of the United States

————

BRIAN ARMSTRONG,

Petitioner,

WB STUDIO ENTERPRISES, INC., AND

WARNER BROTHERS ENTERTAINMENT, INC.,

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

————

MICHAEL J. FREIMAN

100 Wilshire Blvd.

Suite 700

Santa Monica, CA 90401

(310) 917-1022

SCOTT J. STREET

Counsel of Record

JW HOWARD ATTORNEYS

201 South Lake Avenue

Suite 303

Pasadena, CA 91101

(213) 205-2800

sstreet@jwhowardattorneys.com

Counsel for Petitioner

March 26, 2026

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

QUESTIONS PRESENTED

1. Should a judge or a jury decide the fact

intensive question of whether intentional discrimination against white people in the workplace—done

pursuant to a corporate DEI policy—satisfies the “but

for” causation standard in 42 U.S.C. § 1981?

2. Whether, under the “but for” causation standard established in Comcast Corp. v. National Ass’n of

African American-Owned Media, 589 U.S. 327 (2020),

a court may grant summary judgment by examining

only the actions of a single subordinate decision-maker

in isolation, where the record contains evidence that

supervisors above that decision-maker directed raceconscious hiring decisions as part of an integrated

corporate scheme to implement a discriminatory

diversity policy.

(i)

PARTIES TO THE PROCEEDING

Petitioner Brian Armstrong was the plaintiffappellant below.

Respondents WB Studio Enterprises, Inc. and

Warner Brothers Entertainment, Inc. (NASDAQ:

WBD) were the defendants-appellees below.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

PARTIES TO THE PROCEEDING ....................

TABLE OF AUTHORITIES ................................

OPINIONS BELOW ............................................

JURISDICTION ..................................................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..............................

INTRODUCTION ................................................

STATEMENT OF THE CASE ............................

REASONS FOR GRANTING THE PETITION..

I. The Question Whether Corporate

Diversity Policies That Expressly

Reference Race Constitute Evidence of

Intentional

Discrimination

Under

Section 1981 Is an Important and

Recurring Question of Federal Law That

This Court Should Resolve .......................

II. The Decision Below Conflicts With This

Court’s Precedent Regarding “But For”

Causation Under Section 1981 .................

CONCLUSION ....................................................

(iii)

TABLE OF AUTHORITIES

CASES

Page(s)

Bank v. Am. Airlines Group, Inc.,

No. 2:20-cv-09717, 2021 WL 2119502

(C.D. Cal. 2021) .........................................

Comcast Corp. v. Nat’l Ass’n of

Afr. Am.-Owned Media,

589 U.S. 327 (2020) ......................... 4, 14, 16, 18

McDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273 (1976) ...................................

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) ................................... 17, 18

Muldrow v. City of St. Louis,

601 U.S. 346 (2024) ...................................

Ramirez v. Dep’t of Corr., Colo.,

222 F.3d 1238, 1244 (10th Cir. 2000) .......

Staub v. Proctor Hosp.,

562 U.S. 411 (2011) ................................... 4, 17

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

600 U.S. 181 (2023) ................................. 2, 4, 11

CONSTITUTION

U.S. Const. amend. XIV, § 1 ..................... 1, 11-12

STATUTES

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

42 U.S.C. § 1981 .............. 2-4, 10, 11, 12-17, 15-18

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

42 U.S.C. § 1981(b) .......................................

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit is an unpublished memorandum

disposition filed October 27, 2025 (App. 1a). The order

and judgment of the United States District Court for

the Central District of California granting Respondents’

motion for summary judgment is reported at App. 88a.

The district court’s rulings on Respondents’ motion for

summary judgment incorporated by the order and

judgment is at App. 5a, 57a, 74a, and 87a.

JURISDICTION

The court of appeals entered judgment on October

27, 2025. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment to the

United States Constitution provides, in relevant part:

“No State shall . . . deny to any person within its

jurisdiction the equal protection of the laws.”

42 U.S.C. § 1981(a) provides: “All persons within the

jurisdiction of the United States shall have the same

right in every State and Territory to make and enforce

contracts, to sue, be parties, give evidence, and to the

full and equal benefit of all laws and proceedings for

the security of persons and property as is enjoyed by

white citizens, and shall be subject to like punishment,

pains, penalties, taxes, licenses, and exactions of every

kind, and to no other.”

42 U.S.C. § 1981(b) provides: “For purposes of

this section, the term ‘make and enforce contracts’

includes the making, performance, modification, and

termination of contracts, and the enjoyment of all

benefits, privileges, terms, and conditions of the

contractual relationship.”

INTRODUCTION

This case presents a question of exceptional importance

in the post- Students for Fair Admissions, Inc. v.

President & Fellows of Harvard College, 600 U.S. 181

(2023) (“SFFA”) landscape: Can an employer adopt a

written policy committing to increase the hiring of

“people of color,” direct supervisors to implement that

policy through explicit racial preferences, replace a

white department head with a person of color to

advance the policy’s racial objectives, and then escape

liability under 42 U.S.C. § 1981 simply because the

newly installed decision-maker claims independent

judgment—even while admittedly following the very

policy that produced her appointment?

The Ninth Circuit said yes. Its decision permits

exactly that result and, in doing so, creates a roadmap

for every employer in America to insulate racial hiring

from judicial scrutiny. The formula is simple: adopt a

facially racial diversity policy; direct senior executives

to implement it through racial quotas and preferences;

delegate final hiring authority to a subordinate who

shares the policy’s goals; and then, when sued, point to

that subordinate’s “independent” judgment as a shield.

Under the decision below, no amount of evidence—not

a written corporate policy referencing race, not emails

demanding to know “how many African Americans are

on your list,” not directives that department heads

must not be “all white,” not the decision-maker’s own

admission that she followed the policy—suffices to

create a triable issue of fact.

The facts here are stark. Petitioner Brian Armstrong

is an Emmy Award-winning television camera operator

who worked continuously on Warner Brothers productions for twelve years. App. 7a–8a, 120a-121a. In 2018,

Warner Brothers adopted a “Commitment to Diversity

and Inclusion” that expressly pledged to increase the

representation of “people of color . . . behind the

camera.” App. 8a–9a, 121a-122a. Senior executives

immediately implemented the Commitment through

race-based directives. Executive Producer Al Higgins

demanded that department heads not be “all white”

and asked subordinates “how many African Americans

are on your list.” Unit Production Manager Carol

Miller tracked prospective employees by race. See App.

46a–47a, 97a-98a, 123a-125a. Armstrong’s white

Director of Photography, Steve Silver, was replaced by

Patti Lee, a person of color. Lee then replaced

Armstrong with Michelle Crenshaw, an AfricanAmerican woman Lee had never worked with and

whose work performance Lee knew nothing about.

App. 11a–12a. 131a-132a, 134a-135a. Lee admitted

she followed the Commitment and felt good about

“increasing the amount of people of color behind the

camera.” App. 29a, 112a, 133a-134a.

Yet both the district court and the Ninth Circuit

granted summary judgment for Warner Brothers. The

courts dismissed the racial corporate policy, the

executives’ racial directives, and the decision-maker’s

own admission as insufficient evidence of intentional

discrimination—reasoning that the Commitment “did

not contain any specific instructions or directive on

whom to hire.” App. 3a. This elevates form over

substance to a degree that eviscerates Section 1981’s

protections. A policy need not say “do not hire white

people” to constitute evidence of intentional race

discrimination. When the policy expressly targets race,

executives enforce it through racial quotas, and the

decision-maker admits following it, the inference of

discrimination is overwhelming.

This case warrants certiorari for two reasons.

First, it presents the urgent question of whether

corporate diversity policies that expressly reference

race constitute evidence of intentional discrimination

under Section 1981—a question this Court has never

addressed, that is certain to recur with increasing

frequency in the wake of SFFA, and on which the lower

courts are providing no meaningful guidance. Second,

the decision below conflicts with this Court’s precedents in Comcast Corp. v. Nat'l Ass'n of African Am.Owned Media, 140 S. Ct. 1009, 1014 (2020) and Staub

v. Proctor Hosp., 562 U.S. 411, 422 (2011) by permitting

employers to atomize an integrated discriminatory

scheme into individually defensible decisions, thereby

defeating “but for” causation as a matter of law even

where the totality of the evidence points unmistakably

to race as the determinative factor.

The practical consequences of the Ninth Circuit’s

holding cannot be overstated. Many of American

employers maintain diversity, equity, and inclusion

programs that set racial goals for hiring. The decision

below tells those employers that they may implement

such programs through explicit racial preferences

without fear of Section 1981 liability, so long as final

hiring authority is formally delegated to a subordinate

who can articulate a race-neutral rationale for each

individual decision. If this framework stands, Section

1981’s prohibition on intentional race discrimination

in contracting will be reduced to a prohibition only on

the most cartoonishly explicit forms of individual

bigotry—leaving untouched the systemic, policy-driven

racial preferences that represent the most consequential

form of race discrimination in the modern American

workplace.

STATEMENT OF THE CASE

Petitioner Brian Armstrong is a veteran television

camera operator who worked continuously for

Respondents on Chuck Lorre’s television productions

from 2007 to 2019—a period spanning approximately

twelve years. App. 7a–8a, 120a-122a. During that

time, Armstrong served as one of four camera

operators on both “Two and a Half Men” and “The Big

Bang Theory,” earning eight Emmy nominations and

one Emmy award for his work. App. 121a. Throughout

this entire period, Armstrong reported to Director of

Photography Steve Silver, and Producer Chuck Lorre

stated that he wanted to keep “this family together”

referring to Armstrong’s being on the team with Silver.

App. 121a. In March, 2019, President Peter Roth told

Plaintiff, “[t]his family will never be broken up.” App.

128a. Armstrong’s employment with Respondents was

continuous; when one Lorre production ended,

Armstrong and his fellow camera crew members were

customarily rolled over onto the next Lorre production

at Warner Brothers. App. 7a-8a, 119a-121a.

In September 2018, Warner Brothers implemented

a “Commitment to Diversity and Inclusion” that was

included in all new-hire paperwork and posted on the

camera door of The Big Bang Theory set. App. 121a122a. The Commitment stated that Warner Brothers

“must all ensure there is greater inclusion of . . . people

of color . . . in greater numbers . . . behind the camera.”

App. 121a-122a. The Commitment further pledged

that “[i]n the early stages of the production process, we

will engage with our writers, producers, and directors

to create a plan for implementing this commitment.”

App. 121a-122a.

The Commitment was not merely aspirational.

Executive producers promptly implemented it through

racial directives with some executives telling Armstrong

that they “need to work off the Warner Bros new diversity

hiring program not only in front of the camera but behind

the camera.” App. 46a. Executive Producer Al Higgins

sent an email stating: “I don’t want them all white,”

referring to department heads on the upcoming “Bob

Hearts Abishola” series. App. 123a. In another email,

Higgins demanded: “I hate to put it bluntly but how

many African Americans are on your list.” App. 124a.

Unit Production Manager Carol Miller responded by

identifying crew members by race, stating: “These are

our African Americans as of now. This does not touch

upon our other minorities.” App. 124a.

When asked about Higgins’ statement that he did

not want department heads to be “all white,” Peter

Roth, the President of Warner Bros. Television Group,

declined to characterize it as problematic. App. 123a124a. Executive Producer Chuck Lorre described Higgins’

race-based demands as arising from “honorable”

intent, adding that the efforts were consistent with

Lorre’s own commitment to diversity. App. 123a-124a.

When asked about the impact of these policies on

white employees, Lorre responded dismissively: “What

about them? You’re seriously asking me that question.

Oh, my goodness.” App. 125a.

Steve Silver—Armstrong’s white director of photography on The Big Bang Theory—was directed to find

African-American crew members. Silver asked subordinate Ben Steeples to search for crew members who

were African-American. Steeples was instructed to

“start with African-American people, male or female,

and then go from there.” App. 46a, 125a-126a.

The racial staffing of Bob Hearts Abishola was

driven in significant part by the desire to make the

show’s black cast to feel comfortable by having black

crew members on set. Miller compared hiring AfricanAmerican crew to providing the cast with desired food

in craft services and satisfactory dressing rooms—

framing racial hiring as a component of cast comfort.

App. 123a, 126a-127a.

Again, these were not isolated comments or actions.

And, when asked about them, Lorre defended them. In

fact, Lorre felt the show should have been targeting

“all minorities and groups that have in the past been

excluded.” App. 99a. That did not include Caucasians,

though. Lorre said that including white people in a

DEI hiring policy would be “preposterous” because

such policies were designed to “make up, create

opportunity for everyone else.” App. 99a-100a.

This commitment to Warner Brothers’ DEI policy

forced the hand of producer Krisy Cecil, who oversaw

the hiring of crew for the new series. She admitted to

Armstrong that the changes he had heard about were

“true,” and confirmed that she “had to hand over the

hiring process for Bob to Carol Miller” pursuant to the

diversity initiative. App. 130a. Producer Robin Green

told Armstrong: “Yep. It looks like we are an

endangered species,” and further stated: “Kristy has

been ordered to follow this new diversity hiring

program which includes, you know, we got to hire more

Blacks.” App. 130a.

Cecil replaced two white department heads with

persons of color. She described this as a “coincidence”

with the Commitment, yet she did not deny that

Armstrong was not selected to work on Bob Hearts

Abishola due to the Commitment. App. 131a-132a.

Critically, when Armstrong wrote to Cecil about what

he described as “illegally vicious rumors” regarding

race-based hiring changes, Cecil replied confirming

that it was true—she had to replace Steve Silver with

Patti Lee, and that as a result of this replacement,

Respondents “lost” Armstrong as a television camera

operator. App. 135a-136a. Cecil’s admission is powerful

but-for evidence: she essentially conceded that because

Silver was replaced with Lee—a person of color—

Armstrong lost his position. The causal chain is direct

and unbroken: the racial replacement of Silver with

Lee was the reason Armstrong was not retained. App.

135a-136a. Silver himself told Armstrong that “you

have to be a certain demographic to move on to the

Bob Hearts Abishola production.” App. 126a. This

statement confirms that race was the operative

criterion for continued employment on the new series.

Lee herself testified that she adhered to the

Commitment in selecting television camera operators

and felt good about “increasing the amount of people

of color behind the camera” because she “like[s] to have

a diverse and inclusive workplace.” App. 111a-112a.

Lee testified that she would continue to adhere to the

Commitment in her future work with Respondents.

App. 111a

The implementation of the Commitment spawned

pervasive racially hostile commentary on the production set. Multiple crew members made statements to

Armstrong about the impact of the race-based hiring

policies on white employees. Crew member David

Pearce told Armstrong: “Well, Army, I guess it’s finally

happened. It looks like we’ve been diversified out of the

business.” App. 44a, 127a. Crew member Todd Slater

called Armstrong “Honkie” and told him: “Didn’t you

see the note? You out of work my friend. You and me

and people like us.” App. 44a, 127a. Crew member T.

Ryan Brennan stated: “You think people like you and

I are ever going to work in this industry again because

of that?” App. 101a, 127a.

Most severely, on May 2, 2019, Executive Producer

Chuck Lorre told Armstrong: “You guys are going to be

seeing a lot more schvartzes in the next couple of

years”—using a Yiddish racial slur that Lorre himself

admitted was a “hateful word” that would create a

hostile work environment. App. 102a, 129a. On May 3,

2019, Cecil told Armstrong: “[D]idn’t you see the DEI

statement. Well, people like you are not—don’t have

much of a future in this business.” App. 102a, 130a.

This was a new development. Throughout the final

season of The Big Bang Theory, Respondents’ senior

executives repeatedly assured Armstrong of continued

employment. Roth told Armstrong: “Don’t you worry.

This family will never be broken up” and “You’ll always

have a job here at Warner Bros. . . . as long as Chuck

and I are here.” App. 128a-129a. Lorre told Armstrong:

“I hope you come with the rest of your guys . . . onto

the next one” and “Army, you’re gold. Why in the world

would you never have as long a career as you ever want

with me.” App. 128a-129a.

Despite these assurances, Armstrong was not

hired for Bob Hearts Abishola. Instead, Patti Lee—

who knew Armstrong and was aware of his excellent

performance as a television camera operator—was

chosen as Director of Photography and selected her

own crew. Lee replaced Armstrong with Michelle

Crenshaw, an African-American woman whom Lee

had never worked with and about whose work performance Lee had no personal knowledge. App. 134a-

135a Lee admitted that selecting Crenshaw made her

feel good about “increasing the amount of people of

color behind the camera.” App. 134a.

Armstrong filed suit in the United States District

Court for the Central District of California, asserting

a single cause of action under 42 U.S.C. § 1981,

encompassing theories of racial discrimination, retaliation, and hostile work environment. App. 6a.

Respondents moved for summary judgment. After

extensive briefing and two oral argument hearings on

May 6 and June 10, 2024, the district court (Wu, J.)

issued a tentative ruling granting the motion in part

as to the discrimination and hostile work environment

theories. App. 5a–6a. The court ordered supplemental

briefing on the retaliation claim. After further briefing,

the court granted summary judgment on all theories

on July 15, 2024. App. 88a.

On the discrimination claim, the district court

focused its analysis on Patti Lee as the sole relevant

decision-maker, concluding that because Lee had not

previously worked with Armstrong and had filled the

camera operator positions before Armstrong expressed

interest, Armstrong could not establish a prima facie

case. The court dismissed the racial statements and

directives by the show’s top producers and executives

as irrelevant because those individuals were not the

direct hiring decision-maker for camera operator

positions. App. 20a–34a.

On the retaliation claim, the court found that

Armstrong failed to establish causation. App. 35a–38a.

On the hostile work environment claim, the court

concluded that the alleged conduct was not sufficiently

severe or pervasive to alter the conditions of

Armstrong’s employment. App. 38a–51a.

The Ninth Circuit affirmed in an unpublished

memorandum disposition dated October 27, 2025.

REASONS FOR GRANTING THE PETITION

I. The Question Whether Corporate Diversity

Policies That Expressly Reference Race

Constitute Evidence of Intentional Discrimination Under Section 1981 Is an Important

and Recurring Question of Federal Law

That This Court Should Resolve.

This case squarely presents the question whether a

corporate diversity policy that expressly commits to

increasing the hiring of “people of color” constitutes

evidence of intentional race discrimination under

42 U.S.C. § 1981. The Ninth Circuit answered

that question in the negative, holding that Warner

Brothers’ Commitment to Diversity and Inclusion “did

not constitute a race-based reason for hiring other

candidates because the commitment did not contain

any specific instructions or directive on whom to hire.”

App. 3a. This holding cannot be reconciled with this

Court’s precedents and presents a question of exceptional

national importance.

In Students for Fair Admissions, Inc. v. President

and Fellows of Harvard College, 600 U.S. 181, 206,

(2023), this Court held that racial admissions programs at Harvard University and the University of

North Carolina violated the Equal Protection Clause.

The Court emphasized that “[e]liminating racial

discrimination means eliminating all of it.” It also held

programs that use race as a factor in decision-making

are constitutionally suspect regardless of whether

they are designed to promote diversity or remedy past

discrimination. Id. at 207-208. That makes sense.

“Distinctions between citizens solely because of their

ancestry are by their very nature odious to a free

doctrine of equality.” Id. at 208 (quotations omitted).

Of course, SFFA focused on the Equal Protection

Clause, which prohibits race-based decision-making

by state actors. This case deals with Section 1981. But

the principles that the Court extolled in SFFA should

apply with equal force in the 1981 analysis. After all,

the Equal Protection Clause guarantees equality in

government decision-making while section 1981 guarantees equality in making and enforcing contracts.

And courts often analyze section 1981 and equal

protection-based section 1983 claims together. See, e.g.,

Ramirez v. Dep't of Corr., Colo., 222 F.3d 1238, 1244

(10th Cir. 2000) (holding that “allegations of racial and

national origin discrimination which are sufficient to

support Plaintiffs' equal protection claim under § 1983

are also sufficient to withstand Defendant's motion to

dismiss their § 1981 claims”). Thus, this case is an

ideal vehicle to consider how the principles discussed

in SFFA apply in the private sector.

That is especially true here. The Commitment by

Warner Brothers that is at issue here is not a generic,

aspirational statement. It specifically pledges to

increase the representation of “people of color . . .

behind the camera,” and contemplates a “plan for

implementing this commitment” through engagement

with “writers, producers, and directors.” And, as

explained above, this plan was implemented through

explicit race-based hiring directives.

The question presented has enormous practical

significance. Despite this Court’s rejection of race-based

decision-making in SFFA, regardless of the reason,

employers maintain diversity, equity, and inclusion

programs that set racial goals for hiring. The question

whether such programs constitute evidence of intentional discrimination when employees are passed over

for members of favored racial groups is certain to recur

with increasing frequency. This Court should grant

certiorari to provide guidance on the evidentiary significance of racial corporate diversity policies under

Section 1981.

Moreover, the rule of law adopted by the Ninth

Circuit—that a corporate diversity policy expressly

referencing race does not constitute evidence of

intentional discrimination unless it contains “specific

instructions or directive on whom to hire”—is not

merely an erroneous application of existing law to

unusual facts. It is the adoption of a new and

fundamentally erroneous legal standard that will

govern race-discrimination cases throughout the

largest federal circuit in the country. Under this

standard, only the most explicit and cartoonish racial

directives—a policy stating “do not hire white

applicants”—would constitute evidence of discrimination.

Any policy that achieves the same result through

even slightly more sophisticated language would be

immunized from scrutiny. This is precisely the kind

of erroneous rule of law, as distinguished from a

mere erroneous factual finding or misapplication of

a correctly stated rule, that warrants this Court’s

intervention.

And the time is now. In the wake of SFFA, a growing

number of plaintiffs have brought Section 1981 claims

challenging racial diversity programs in employment—

the logical extension of SFFA’s principles from

education to the workplace.

II. The Decision Below Conflicts With This

Court’s Precedent Regarding “But For”

Causation Under Section 1981.

In Comcast Corp. v. National Ass’n of African

American-Owned Media, 589 U.S. 328, 341 (2020), this

Court resolved a circuit conflict by holding that a

plaintiff need only “plead and prove that, but for race,

it would not have suffered the loss of a legally

protected right.” The decision below misapplied this

standard by compartmentalizing the evidence of racial

discrimination and examining only the immediate

hiring decision-maker in isolation from the corporate

structure that directed racial hiring.

The Ninth Circuit’s analysis veered from that

standard by focusing exclusively on Patti Lee. App. 2a.

However, given Lee’s knowledge of Armstrong and his

exceptional qualifications, there is a genuine issue of

material fact as to whether Lee’s decision to replace

Armstrong with Crenshaw—an African-American

woman Lee had never worked with and about whose

work performance Lee had no personal knowledge—

was itself motivated by race, separate and independent from the causal chain of Steve Silver’s race-based

replacement. Moreover, the Ninth Circuit’s analysis

ignored the undisputed evidence that Lee was selected

as Director of Photography as part of a racial

restructuring of the production’s leadership, that her

predecessor Steve Silver was replaced because

supervisors did not want department heads to be “all

white,” and that Lee herself testified she followed the

Commitment in making her selections. The but-for

chain is further confirmed by Cecil’s own admission

that because she replaced Silver with Lee, Respondents

“lost” Armstrong as a camera operator—and by Silver’s

statement to Armstrong that people had to “fit a

certain demographic” to move on to the next show. App.

44a. This evidence, combined with the fact that

Armstrong reported to Silver for the entire 2007–2019

period and that Lorre stated he wanted to “keep this

family together” referring to Armstrong’s being on the

team with Silver, and in March, 2019, and President

Peter Roth told Plaintiff, “[t]his family will never be

broken up, ”demonstrates that but for the racial

replacement of Silver, Armstrong would have

continued in his position.

Moreover, the courts below imposed a requirement

not found in Section 1981 itself—that Armstrong must

show he ‘applied for’ the camera operator position in

order to assert a discrimination claim. This requirement is particularly untenable in the entertainment

industry, where there are often no formal applications

for employment. App. 20a–22a. As Justice Alito

emphasized in Muldrow v. City of St. Louis, 601 U.S.

346, 355 (2024), lower courts should not engraft

requirements onto antidiscrimination statutes that

the statutes themselves do not contain.

Equally concerning is the emerging trend among

lower courts of requiring a Section 1981 plaintiff to

plead and prove that he is a ‘racial minority’ in order

to state a claim. Section 1981, by its plain text, protects

‘[a]ll persons’—not merely racial minorities. 42 U.S.C.

§ 1981(a). Yet some courts have held that a Section

1981 plaintiff must be a ‘racial minority’ to state a

claim. See, e.g., Bank v. Am. Airlines Group, Inc., No.

2:20-cv-09717, 2021 WL 2119502, at *1 (C.D. Cal. Apr.

21, 2021) (holding that a plaintiff must plead that ‘(1)

the plaintiff is a member of a racial minority, (2) an

intent to discriminate on the basis of race by the

defendant, and (3) the discrimination concerns one or

more of the activities enumerated in the statute’). This

judicially created requirement finds no support in the

text of Section 1981 and, if left unchecked, would

effectively read white plaintiffs out of the statute’s

protections—a result directly contrary to McDonald v.

Santa Fe Trail Transportation Co., 427 U.S. 273, 296

(1976), which held that Section 1981 protects persons

of all races, including white persons, from racial

discrimination.

The Ninth Circuit’s decision creates a roadmap for

employers to evade Section 1981 liability. Under the

decision below, an employer may implement a racial

hiring policy, direct supervisors to carry it out, replace

decision-makers who do not sufficiently advance the

policy’s racial objectives, and install new decisionmakers who share the policy’s racial goals—all

without facing liability, so long as the final decisionmaker can articulate a race-neutral justification for

each individual hiring choice. This framework

eviscerates the but-for causation standard established

in Comcast by allowing employers to atomize an

integrated discriminatory scheme into isolated, individually defensible decisions.

The record here presents a classic case of organizational discrimination. The Commitment established a

racial policy. As explained above, executives directed

its implementation through explicit racial directives.

A white department head was replaced by a person of

color to advance the policy’s goals. The new

department head admittedly followed the policy. And

the plaintiff—a highly qualified, award-winning white

employee who had been promised continued employment—was passed over in favor of a person of color

whom the new department head had never worked

with and about whose work performance she had no

personal knowledge, despite the fact that Lee knew

Armstrong and was aware of his outstanding

qualifications. But the courts below threw this case out

because of confusing legal decisions and based on an

incorrect assumption that Section 1981 treats racial

discrimination against white people differently.

Thus, this error is not a fact-bound error confined to

this case. It is a legal framework that will govern every

Section 1981 case in the Ninth Circuit—and, if left

uncorrected, will influence the development of the law

nationwide. The Ninth Circuit’s approach holds that

“but for” causation under Comcast can be defeated at

summary judgment by examining only the final

decision-maker’s stated rationale, regardless of the

corporate infrastructure of racial directives that

placed that decision-maker in her role and guided her

selections. This fundamentally misreads Comcast’s

holding. And it conflicts directly with Staub’s

recognition that discriminatory animus by a supervisor

who is not the ultimate decision-maker can establish

employer liability when it is a proximate cause of the

adverse action.

The decision below also illustrates the fundamental

problem with continued reliance on the McDonnell

Douglas burden-shifting framework, see McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973),

in Section 1981 cases involving direct evidence of

discrimination. Here, the trial court applied the

McDonnell Douglas framework to Armstrong’s claim

while simultaneously discounting the abundant direct

evidence of racial decision-making—including the

Commitment, the race-based directives from Higgins

and Miller, the admissions by Cecil and Green, Lorre’s

use of a racial slur, and Lee’s own testimony that she

followed the Commitment. The McDonnell Douglas

framework was designed as an evidentiary tool for

cases in which the plaintiff lacks direct evidence of

discrimination. See Comcast, 589 U.S. at 340. Where,

as here, there is direct evidence that race was a

motivating factor in the employment decision, the

McDonnell Douglas framework is not only unnecessary

but counterproductive—it permits courts to ignore the

totality of the circumstances by compartmentalizing

evidence into artificial burden-shifting categories

rather than asking the straightforward question

whether race was a but-for cause of the adverse action.

This case presents an ideal vehicle for this Court to

clarify that the McDonnell Douglas framework does

not apply where a Section 1981 plaintiff presents

direct evidence of intentional discrimination, and that

lower courts must evaluate the totality of the evidence

under the but-for causation standard of Comcast.

This Court should grant certiorari to reaffirm that

“but for” causation under Section 1981 requires

consideration of the totality of the evidence—including

the corporate policies, executive directives, and organizational structures that produce individual hiring

decisions—and that an employer cannot defeat a

Section 1981 claim at summary judgment by

atomizing an integrated discriminatory scheme into

separately defensible components.

CONCLUSION

Racial discrimination has no place in our society,

regardless of the reason for it. That was SFFA’s lesson.

But Americans have not heeded that lesson, especially

in the entertainment industry. Like Lorre said, they

continue to view discrimination against white people

as acceptable. Given the extreme evidence of direct

racial discrimination, this case presents an ideal

vehicle to reconcile SFFA’s aspirations with the reality

of Section 1981 litigation.

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

MICHAEL J. FREIMAN

100 Wilshire Blvd.

Suite 700

Santa Monica, CA 90401

(310) 917-1022

SCOTT J. STREET

Counsel of Record

JW HOWARD ATTORNEYS

201 South Lake Avenue

Suite 303

Pasadena, CA 91101

(213) 205-2800

sstreet@jwhowardattorneys.com

Counsel for Petitioner

March 26, 2026

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: MEMORANDUM, U.S. Court

of Appeals for the Ninth Circuit (October 27,

2025) .................................................................

APPENDIX B: ORDER AND JUDGMENT,

U.S. District Court for the Central District of

California (May 7, 2024) ..................................

APPENDIX C: TENTATIVE RULING, U.S.

District Court for the Central District of

California (June 6, 2024) .................................

57a

APPENDIX D: TENTATIVE RULING, U.S.

District Court for the Central District of

California (July 12, 2024) ................................

74a

APPENDIX E: FINAL RULING, U.S. District

Court for the Central District of California

(July 15, 2024) ..................................................

87a

APPENDIX F: ORDER AND JUDGMENT,

U.S. District Court for the Central District of

California (July 16, 2024) ................................

88a

APPENDIX G: APPELLANT’S

OPENING

BRIEF, U.S. Court of Appeals for the Ninth

Circuit (December 9, 2024) ..............................

90a

APPENDIX H: PLAINTIFF’S MEMORANDUM

OF POINTS AND AUTHORITIES IN

OPPOSITION TO DEFENDANTS’ MOTION

FOR

SUMMARY

JUDGMENT

AND

PARTIAL SUMMARY JUDGMENT, U.S.

District Court for the Central District of

California (April 1, 2024) ................................. 116a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed: Oct. 27, 2025]

————

No. 24-5049

D.C. No. 2:23-cv-03854-GW-JPR

————

BRIAN ARMSTRONG,

Plaintiff - Appellant,

WB STUDIO ENTERPRISES, INC.;

WARNER BROTHERS ENTERTAINMENT, INC.,

Defendants - Appellees.

————

MEMORANDUM*

————

Appeal from the United States District Court for

the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted October 8, 2025

Pasadena, California

————

Before: RAWLINSON, MILLER, and JOHNSTONE,

Circuit Judges.

————

This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

Brian Armstrong appeals from the district court’s

grant of summary judgment for WB Studio Enterprises, Inc. and Warner Brothers Entertainment,

Inc. (collectively, “Warner Brothers”), on his 42 U.S.C.

§ 1981 discrimination, retaliation, and hostile work

environment claims. We have jurisdiction under

28 U.S.C. § 1291. We review de novo a district court’s

grant of summary judgment. Surrell v. Cal. Water

Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008). We

affirm.

Section 1981 makes it unlawful to intentionally

discriminate because of race when “mak[ing] and

enforc[ing] contracts,” which includes “the enjoyment

of all benefits, privileges, terms, and conditions of

the contractual relationship.” 42 U.S.C. § 1981(b);

Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania,

458 U.S. 375, 391 (1982). To show intentional discrimination because of race, plaintiffs must prove

that “but for” race, they would not have suffered the

loss of a right protected by the statute. Comcast Corp.

v. Nat’l Ass’n of Afr. Am.-Owned Media, 589 U.S. 327,

333, 341 (2020).

1. The district court properly granted summary

judgment on Armstrong’s § 1981 discriminatory

failure-to-hire claim. Armstrong failed to raise a

genuine dispute of material fact that the hiring

decision maker, Patti Lee, made her decisions

because of race rather than legitimate reasons. See

id.; Vasquez v. Cnty. of Los Angeles, 349 F.3d 634,

638, 640 (9th Cir. 2003). Statements made by people

who were not involved in the hiring process are not

material because Armstrong failed to establish a

genuine dispute that those statements were connected to the hiring authority for the position at

issue. See Vasquez, 349 F.3d at 640 (analyzing

conduct of facility director who made decision to

transfer plaintiff rather than conduct of co-worker

who made racially charged statements). Warner

Brothers’s statement regarding its “Commitment to

Diversity and Inclusion” did not constitute a racebased reason for hiring other candidates because the

commitment did not contain any specific instructions

or directive on whom to hire, nor is there evidence

that Patti Lee relied on the commitment in making

her hiring decisions.

2. The district court properly granted summary

judgment on Armstrong’s § 1981 retaliation claim.

Even assuming Armstrong engaged in a protected

activity and suffered an adverse employment action,

he failed to raise a genuine dispute of material fact

that there was a causal link between the two. See

Surrell, 518 F.3d at 1108. Whether a causal link may

be inferred depends on some showing that the

relevant decision maker was aware of the protected

activity, which Armstrong did not genuinely dispute.

See Raad v. Fairbanks N. Star Borough Sch. Dist.,

323 F.3d 1185, 1197 (9th Cir. 2003) (affirming

summary judgment for school district because no

evidence of requisite awareness by “the particular

principals” who made allegedly retaliatory hiring

decision).

3. The district court properly granted summary

judgment on Armstrong’s § 1981 hostile work environment claim. Armstrong failed to raise a genuine

dispute of material fact that the alleged conduct was

sufficiently severe or pervasive to alter the conditions

of his employment and create an abusive work

environment. See Manatt v. Bank of Am., NA, 339

F.3d 792, 798 (9th Cir. 2003). Generally, “teasing,

offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory

changes” in the conditions of employment. Id. There

is no genuine dispute that the conduct challenged

by Armstrong was not severe, pervasive, or unreasonably interfered with his work performance. See

McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113

(9th Cir. 2004).

AFFIRMED.

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

————

Case No.

CV 23-3854-GW-JPRx

Date

May 7, 2024

Title

Brian Armstrong v. WB Studio

Enterprises, Inc., et al.

————

Present: The Honorable GEORGE H. WU,

UNITED STATES DISTRICT JUDGE

___Javier Gonzalez___

Deputy Clerk

___None Present___

Court Reporter / Recorder

__________________

Tape No.

Attorneys Present for Plaintiffs:

None Present

Attorneys Present for Defendants:

None Present

PROCEEDINGS: IN CHAMBERS - AMENDED

TENTATIVE

RULING

DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT OR, IN

THE ALTERNATIVE, PARTIAL

SUMMARY JUDGMENT [64]

Attached hereto is the Court’s Amended Tentative

Ruling on Defendants’ Motion [64]. The Court adopts

its tentative as its final and GRANTS Defendants’

motion for summary judgment with regard to Plaintiff’s

discrimination and hostile work environment theories.

However, the Court requests the parties submit supplemental briefing with respect to Plaintiff’s retaliation

theory concerning the alleged threat made by Sidell to

Plaintiff. Each party will submit their briefs by May

21, 2024, with each brief limited to five pages.

Initials of Preparer JG

I. Background

Plaintiff Brian Armstrong (“Plaintiff” or “Armstrong”)

brings this action against Defendants WB Studio

Enterprises, Inc., Warner Bros. Entertainment, Inc.,

and Does 1-20 (collectively “Defendants” or “WB”) alleging

a violation of 42 U.S.C. § 1981, et seq. (“Section 1981”)

under three theories of race-based discrimination:

(1) failure to hire, (2) retaliation, and (3) hostile work

environment. See Second Amended Complaint (“SAC”),

Docket No. 25. Defendants moved to dismiss the SAC

for reasons of estoppel and preemption. See Docket No.

26. The Court denied Defendants’ motion, see Docket

No. 32, 41, and the parties subsequently engaged in an

unsuccessful mediation. See Docket Nos. 38-39. On

November 9, 2023, Defendants filed an Answer to the

SAC, see Docket No. 42, and the parties have since

engaged in discovery.

Now before the Court is Defendants’ motion for summary judgment, or in the alternative, partial summary

judgment (“Mot”). See Docket No. 64. Plaintiff filed an

opposition (“Opp.”), see Docket No. 66, and Defendants

filed a reply (“Reply”), see Docket No. 68.

II. Factual Background1

Armstrong identifies as a white, heterosexual,

Christian male. See SGD 1. Plaintiff is a television

camera operator with extensive experience working on

multi-cam sitcoms. See SGD 2, 6. During his career,

Plaintiff worked on many shows where Chuck Lorre

(“Lorre”) was the executive producer, including Dharma &

Greg, Two and a Half Men, and The Big Bang Theory

(“Big Bang”). See SGD 2, 6; ADF 8-9. Armstrong

worked on Two and a Half Men as a camera assistant

and camera operator from 2003-2015, and on Big Bang

from 2007 to May 2019. See SGD 2, 6. While working

on Big Bang, Plaintiff ’s employment was subject to the

terms of the IATSE Local 600 collective bargaining

agreement in which Armstrong was employed by

Warner Bros. Television (“WBTV”) on a daily basis. See

id. 9-11. In 2013, while working on Big Bang, Plaintiff,

The Court has examined in detail: (1) Defendants’ Statement

of Uncontroverted Facts, Docket No. 64-2; (2) Plaintiff’s Statement of

Genuine Disputes (including Plaintiff’s Additional Statement of

Genuine Disputes (“ADF”)), Docket No. 66-1; and (3) Defendants’

Response to Statement of Genuine Disputes (“SGD”), Docket No.

68-1. Any citation to particular paragraphs within the SGD or

ADF also references all parties’ statements and responses to

those same paragraphs.

The Court has reviewed such disputes and has included in this

summary only facts that are supported by the cited evidence,

altering the proffered facts if necessary to accurately reflect the

uncontroverted evidence. To the extent the cited underlying

“undisputed” facts have been disputed, the Court finds that the

stated disputes: (1) fail to controvert the proffered “undisputed”

facts; (2) dispute the facts on grounds not germane to the below

statements; and/or (3) fail to cite evidence in support of the

disputing party’s position. As such, the Court treats such facts as

undisputed. Any proffered facts not included in this ruling were

found to be: (1) unsupported by admissible evidence; (2) irrelevant

to the Court’s present analysis; or (3) some combination thereof.

along with four other individuals, won an Emmy for

Outstanding Technical Direction, Camerawork, Video

Control. See ADF 12. Plaintiff received other Emmy

nominations in his career and Lorre considered him to

be a qualified and talented camera operator. See id. 14,

16. Additionally, from 2015-2019, Plaintiff also worked

as a camera operator on all four seasons of the show

The Ranch. See SGD 13.

Production on the pilot for a new WBTV and Lorre

show, Bob Hearts Abishola (“Bob Hearts”), took place

in late March and April 2019. See id. 14. The Bob

Hearts pilot filmed on April 16-18, 2019. See id. Steve

Silver (“Silver”) served as the Director of Photography

for the Bob Hearts pilot. See id. 17. Silver, Plaintiff ’s

former supervisor on previous Lorre shows, did not ask

Armstrong to work on the Bob Hearts pilot because

Plaintiff was not available as it would have conflicted

with his commitments on Big Bang and The Ranch.

See id. 20-21. Carol Miller (“Miller”) and Michael

Collier (“Collier”) were the producers responsible for

staffing the Bob Hearts pilot. See ADF 25. Robinson

Green (“Green”), Kristy Cecil (“Cecil”), and Patti Lee

(“Lee”) did not have any involvement with the Bob

Hearts pilot. See SGD 27, 43.

Big Bang ended production on May 3, 2019. See id.

12. During the last season of Big Bang, in late 2018/

early 2019, Plaintiff saw the Warner Bros.’ Commitment

to Diversity and Inclusion (“Commitment”) posted on

the set of Big Bang and took a picture. See ADF 18.

The Commitment reads in whole:

WarnerMedia companies Warner Bros.,

HBO and Turner have long been committed

to diversity and inclusion as moral and

business imperatives. It is essential that our

content and creative partners reflect the

diversity of our society and the world around

us. Together with other production companies,

networks, guilds, unions, talent agencies and

others in the industry, we all must ensure

there is greater inclusion of women, people of

color, the LGBTQ+ community, those with

disabilities and other underrepresented groups

in greater numbers both in front of and

behind the camera.

For our part, WarnerMedia pledges to use

our best efforts to ensure that diverse actors

and crew members are considered for film,

television and other projects, and to work

with directors and producers who also seek to

promote greater diversity and inclusion in our

industry. To that end, in the early stages of

the production process, we will engage with

our writers, producers, and directors to create

a plan for implementing this commitment to

diversity and inclusion on our projects, with

the goal of providing opportunities for

individuals from underrepresented groups at

all levels. And we will issue an annual report

on our progress.

The companies of WarnerMedia have a

historic and proven commitment to diversity

and inclusion. But there is much more we can

do and we believe real progress can be made

in the industry. We will work with our

partners in the entertainment community to

make this commitment a reality.

See id. 19; Docket No. 67-1 at 2142. Plaintiff was

offended by the Commitment as he felt it excludes

white people. See id. 20. Additionally, in the last few

months of Big Bang’s production, Lorre and Peter Roth

10a

(“Roth”), then President of WBTV, made generalized

comments to Plaintiff and other Big Bang crew about

a desire to have those individuals continue to work

together at WB on future shows. See id. 52-53, 57, 5961, 64. Plaintiff ’s last day of employment with WB was

May 3, 2019. See SGD 12.

On or around May 9, 2019, CBS ordered Bob Hearts

to series for a first season. See id. 22. WBTV produces

the Bob Hearts series, Lorre serves as an executive

producer, along with Al Higgins (“Higgins”) and others.

See id. 23, 39. Green and Cecil were selected as

producers of the Bob Hearts series. See id. 24. As

producers, Green and Cecil oversaw the show’s physical production, including the selection and hiring of

department heads, including the Director of Photography. See id. 25, 29. The Director of Photography for

a series is responsible for creating the look of the

television show and oversees the camera department

personnel. See id. 29. It is custom and practice in the

television industry that the Director of Photography,

as the head of the camera department, selects the

camera operators. See id. 44. After Green and Cecil

began working on the Bob Hearts series, they started

looking for a Director of Photography. See id. 28. While

Silver had been the Director of Photography for the

Bob Hearts pilot, he was not chosen as Director of

Photography for the Bob Hearts series. See id. 31.

Green and Cecil considered and interviewed multiple

candidates for the Director of Photography position,

including Lee. See id. 35. Lee is a Chinese-American,

lesbian woman that has extensive experience working

as a Director of Photography on television series. See

id. 36. Green and Cecil did not know Lee prior to

considering her for the role, but Lee came recommended by Green’s peers. See id. 38. After interviewing

Lee for the job, Green and Cecil recommended hiring

11a

Lee to Lorre and Higgins, who approved of the

selection. See id. 39-40.

After Lee was selected as the Director of Photography

for the Bob Hearts series, she began considering

individuals to hire for the four camera operator

positions. See id. 45. In her search, Lee believed the

majority of people she considered for the camera

operator positions on the Bob Hearts series were

white. See id. 47. In late May 2019, Lee reached out to

several camera operators whom she believed were

qualified to inquire whether they were available and

interested in working on the Bob Hearts series. See id.

48. To Lee, the most important consideration when

selecting individuals was the person’s qualifications,

and other relevant factors were the person’s interest,

availability, and personality. See id. 51. On May 29,

2019, Lee sent an email to Green informing him of the

crew she had selected to date, including Mark Davison,

Michelle Crenshaw, and Jon Purdy as three of the four

camera operators. See id. 49. On June 6, 2019, Lee sent

an email to Green and Cecil informing them of the

updated selections for camera operators, including

Mark

Davison

(“Davison”),

Chris

Hinojosa

(“Hinojosa”), Jon Purdy (“Purdy”), and Michelle

Crenshaw (“Crenshaw”). See id. 60. Davison, Purdy,

and Hinojosa identify as white males.2 See id. 52, 57.

Plaintiff attempts to dispute the fact that Hinojosa identifies

as white. See ADF 92. As evidence, Plaintiff relies on Ben Steeples’

observations that he “believe[s] [Hinojosa] has some type of nonCaucasian heritage in his makeup.” 2024 Ben Steeples Deposition

Transcript, 58:3-9. In response, Hinojosa has declared that he

identifies “as a White male.” Declaration of Chris Hinojosa,

Docket No. 64-9 ¶ 2. In light of a sworn declaration on the part of

Hinojosa, and Plaintiff’s claim being based solely on someone’s

conjecture, for purposes of this Order, the Court finds it

undisputed that Hinojosa is a white male.

12a

Lee selected Davison and Purdy because she had

previously worked with them on prior productions. See

id. 52. Lee selected Hinojosa because he had repeatedly contacted Lee expressing an interest in working

with her. See id. at 57. Crenshaw identifies as a black

woman. See id. 53. Lee selected Crenshaw because she

had known Crenshaw for several years; Crenshaw was

well recommended by others; and Lee had wanted to

work with Crenshaw in the past, but Crenshaw had

not been available. See id. 53-56. Lee did not consider

or rely on the Commitment when hiring camera

operators for the Bob Hearts series. See id. 91.

On June 6, 2019, Green and Cecil told Lee that they

had no objections with the camera operators that she

selected. See id. 61. Green and Cecil did not know of

the races of the camera operators when approving

Lee’s selections. See id. 66. Given that approval, on

June 6, 2019, Lee understood her hiring decisions for

camera operators were final and did not consider any

other applicants for the camera operator positions. See

id. 62. Similarly, as of June 6, 2019, Green and Cecil

understood that the camera operator roles were filled.

See id. 63 Lorre was not involved with the selection of

camera operators on the Bob Hearts series. See id. 67.

Higgins was not involved with the selection of camera

operators on the Bob Hearts series. See id. 68. Roth

was not involved with the selection of camera

operators on the Bob Hearts series. See id. 69. Miller

was not involved with the selection of camera

operators on the Bob Hearts series. See id. 70.

During Lee’s consideration of the candidates for

camera operators for the Bob Hearts series, she did not

consider Armstrong for any of the positions. See id. 72.

Lee had never worked with Plaintiff and did not recall

having met with him, though they may have briefly

13a

exchanged pleasantries in the past. See id. 73. At the

time Lee was selecting camera operators, no one

brought up Plaintiff to Lee. See id. 74. Armstrong

never communicated any interest directly to Lee about

the positions and never asked anyone for Lee’s contact

information. See id. 75-76. On June 10, 2019, Plaintiff

sent an email to Cecil stating that he heard very

unfortunate rumors about the new Bob Hearts series

and asking to verify whether he would be working on

the series. See id. 78; Docket No. 64-3 at 307.

Additionally, in the email, Plaintiff asked for Cecil to

respond “ASAP” because he heard the rumors were

“illegally vicious.” Docket No. 64-3 at 307. On June 11,

2019, Cecil responded by email to Plaintiff that due to

the shooting schedule for the Bob Hears series, Silver

would not be the Director of Photography. See SGD 79;

Docket No. 64-3 at 307. Instead, a different Director of

Photography had been hired for the Bob Hearts series

that had selected her own crew, which did not include

Plaintiff. See id.

On June 11, 2019, Plaintiff replied to Cecil by email

stating that he was shocked and confused by her

message. See SGD 80; Docket No. 64-6 at 11-12.

Plaintiff told Cecil that he was available to work on

Bob Hearts and included his IMDB page, requesting

that Cecil send it to Lee for consideration. See id.

Plaintiff stated he was not certain why he was singled

out for refusal to hire, but rumors of diversity hiring

are unconstitutional and a civil rights issue. See id.

Plaintiff further stated that refusal to hire him would

constitute a breaking of Title VII of the Civil Rights

Act and violate McDonald v. Santa Fe Trail Transpo.

Co. See id. Plaintiff further invited Cecil to get to know

him better by looking at his Facebook. See id. On

Facebook, Plaintiff posted a photo of Lee holding an

anti-Donald Trump sign saying, “Sometimes you’re

14a

really not ‘THAT’ surprised when a Camerawoman ...

doesn’t hire you ... Cause you know, you’re a

Conservative, Christian Man who supports Family

Values and stuff.” See SGD 37. Plaintiff made other

Facebook posts claiming he was not hired because he

was too old, too white, too male, too Christian, too

conservative, and about the dark side of Hollywood

where wholesale firing of white, heterosexual,

Christian, conservative, older men was occurring

resulting in reverse discrimination. See id. 93-94.

Cecil did not forward Plaintiff’s email on to Lee

because she knew that the four camera operator

positions for the Bob Hearts series had already been

filled. See id. 83. Lee was unaware of any of Plaintiff’s

concerns at the time she selected camera operators.

See id. 95. Following Plaintiff ’s email to Cecil on June

11, 2019, Silisha Sidell (“Sidell”) and Keren Serrano

(“Serrano”), WB labor relations executives, had a call

with Armstrong to discuss the camera operator positions

on the Bob Hearts series. See id. 85. Serrano’s notes from

the call reflect that Sidell explained to Armstrong that

Lee had hired her own camera crew and asked

Plaintiff if there was anything further to look into, to

which Armstrong said no. See id. 86.

In September 2019, Plaintiff filed a charge with the

EEOC stating he believed he was denied hiring on the

Bob Hearts series based on his race (white), gender

(male), sexual orientation (heterosexual), religion

(Christian), age, and retribution. See id. 89. In October

2019, Plaintiff filed a suit against Defendants alleging

that Defendants told him he could not be hired

because of his race and gender, and they did not hire

him because of his race, gender, sexual orientation,

and religion. See id. 90.

15a

III. Legal Standard

A. Summary Judgment

Summary judgment is proper when a movant

“shows that there is no genuine issue as to any

material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). To

satisfy its burden at summary judgment, a moving

party without the burden of persuasion – which is the

case for Defendants here – “must either produce evidence

negating an essential element of the nonmoving

party’s claim or defense or show that the nonmoving

party does not have enough evidence of an essential

element to carry its ultimate burden of persuasion at

trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos.,

Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see also

Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)

(en banc). The moving party may meet its initial

burden by establishing the absence of a genuine issue

of material fact. See Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986).

Once the moving party meets its initial burden, “the

nonmoving party may not rely on the mere allegations

in the pleadings in order to preclude summary judgment[, but instead] must set forth, by affidavit or as

otherwise provided in Rule 56, specific facts showing

that there is a genuine issue for trial.” T.W. Elec. Serv.,

Inc., v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630

(9th Cir. 1987) (internal citations and quotation marks

omitted). A dispute about a material fact is genuine

“if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v.

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

speculative testimony in affidavits and moving papers

is insufficient to raise genuine issues of fact and defeat

summary judgment. See Nat’l Steel Corp. v. Golden

16a

Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997). And

“[o]nly disputes over facts that might affect the

outcome of the suit . . . will properly preclude the entry

of summary judgment. Factual disputes that are

irrelevant or unnecessary will not be counted.”

Anderson, 477 U.S. at 248.

At the summary judgment stage, a court does not

make credibility determinations or weigh conflicting

evidence. See id. at 249. A court must draw all

inferences in a light most favorable to the nonmoving

party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). Summary judgment

should be entered against a party “who fails to make a

showing sufficient to establish the existence of an

element essential to that party’s case, and on which

that party will bear the burden of proof at trial.” Parth

v. Pomona Valley Hosp. Med. Ctr., 630 F.3d 794, 798-99

(9th Cir. 2010). A court must determine whether a “a

reasonable jury could return a verdict for the

nonmoving party.” Anderson, 477 U.S. at 248.

B. Section 1981

Section 1981 provides that “[a]ll persons within the

jurisdiction of the United States shall have the same

right in every State and Territory to make and enforce

contracts, to sue, be parties, give evidence, and to the

full and equal benefit of all laws and proceedings for

the security of persons and property as is enjoyed by

white citizens, and shall be subject to like punishment,

pains, penalties, taxes, licenses, and exactions of every

kind, and to no other.” 42 U.S.C. § 1981(a). Under

Section 1981, “the term ‘make and enforce contracts’

includes the making, performance, modification, and

termination of contracts, and the enjoyment of all

benefits, privileges, terms, and conditions of the

contractual relationship.” 42 U.S.C. § 1981(b). “Section

17a

1981 offers relief when racial discrimination blocks the

creation of a contractual relationship, as well as when

racial discrimination impairs an existing contractual

relationship, so long as the plaintiff has or would have

rights under the existing or proposed contractual

relationship.” Domino’s Pizza, Inc. v. McDonald, 546

U.S. 470, 476 (2006). Further, to prevail on a Section

1981 claim, “a plaintiff must initially plead and

ultimately prove that, but for race, it would not have

suffered the loss of a legally protected right.” Comcast

Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 589 U.S.

327, 341 (2020).

IV. Discussion

Defendants move to dismiss Plaintiff ’s Section 1981

claim under all theories of failure to hire, retaliation,

and hostile work environment. Plaintiff argues that he

has established sufficient evidence that Defendants

are liable under all three theories. The Court will

address each in turn.

A. Failure to Hire

Defendants argue that Plaintiff ’s failure to hire

discrimination theory fails as a matter of law.

Defendants claim that because there is no direct

evidence of discrimination in this matter, Plaintiff ’s

claim must proceed under the McDonnell Douglas3

framework applicable to Section 1981 claims. See Mot.

at 19-20. Defendants contend that Plaintiff cannot

establish a prima facie case of discrimination because

he did not apply for the camera operator position, and

by the time he expressed interest, the positions were

already filled. See id. Further, even if Plaintiff can

make out a prima facie case, Defendants argue that

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

18a

there were legitimate, non-discriminatory reasons for

him not to be hired, and Plaintiff has no evidence that

such hiring decisions were pretextual or that but for

his race he would have been hired. See id. at 21-26.

Plaintiff responds that there is direct evidence of

race discrimination, pointing to Defendants not hiring

Silver for the Bob Hearts series and that Lee made her

decisions based on race. See Opp. at 4. Thus, Plaintiff

argues the McDonnell Douglas framework does not

apply. See id. Even if it did apply, Plaintiff alleges that

he has shown sufficient evidence that any alleged

reasons offered by Defendants for not hiring him are

pretextual. See id. Defendants reply that Plaintiff ’s

allegations of direct evidence of discrimination is

insufficient to support his claim because there were no

open camera operator positions as of June 6, 2019,

which is fatal to his claim. See Reply at 9-10. Further,

Defendants assert Plaintiff is incorrect and that there

is no direct evidence of discrimination in this matter.

See id. at 10-12. Defendants then reiterate that

Plaintiff ’s claim fails under the McDonnell Douglas

framework for failure to establish a prima facie case,

failure to show Defendant’s legitimate reasons for not

hiring him were pretextual, and failure to show but for

his race he would have been hired. See id. at 12-21.

1. Legal Standard

“When analyzing § 1981 claims, we apply the same

legal principles as those applicable in a Title VII

disparate treatment case.” Surrell v. California Water

Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008) (internal

quotation marks omitted). A prima facie Section 1981

case “requires proof of intentional discrimination”

where “the focus of the judicial inquiry must be

whether the plaintiff has proven by a preponderance

of evidence facts from which the court must infer,

19a

absent rebuttal, that the defendant was more likely

than not motivated by a discriminatory animus.” Gay

v. Waiters’ & Dairy Lunchmen’s Union, Loc. No. 30, 694

F.2d 531, 538 (9th Cir. 1982).

“Typically, we apply the familiar McDonnell Douglas

burden shifting framework for Title VII and § 1981

claims.” Surrell 518 F.3d at 1105. To establish a prima

facie case of discrimination through indirect evidence,

“the plaintiff must show that (1) she is a member of a

protected class; (2) she applied for a job for which she

was qualified; (3) she was rejected; and (4) the position

remained open and the employer sought other similarlyqualified employees.” Id. at 1105-06. “If the plaintiff

establishes a prima facie case, the burden then shifts

to the defendant to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory or

retaliatory conduct.” Id. at 1106. “If the employer

articulates a legitimate reason for its action, the

presumption of discrimination drops out of the picture,

and the plaintiff may defeat summary judgment by

satisfying the usual standard or proof required ...

under Fed. R. Civ. P. 56(c).” Id. (internal quotation

marks and citation omitted). “ The plaintiff then must

produce sufficient evidence to raise a genuine issue of

material fact as to whether the employer’s proffered

nondiscriminatory reason is merely a pretext for

discrimination.” Dominguez-Curry v. Nevada Transp.

Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005).

“However, nothing compels the parties to use the

McDonnell Douglas framework.” Reynaga v. Roseburg

Forest Prod., 847 F.3d 678, 691 (9th Cir. 2017). “For its

part, McDonnell Douglas sought only to supply a tool

for assessing claims, typically at summary judgment,

when the plaintiff relies on indirect proof of discrimination.” Comcast, 589 U.S. at 340. Alternatively, a

20a

plaintiff may present a prima facie case by offering

“direct or circumstantial evidence of discriminatory

intent.” Vasquez v. Cnty. of Los Angeles, 349 F.3d 634,

640 (9th Cir. 2003). “Direct evidence is evidence which,

if believed, proves the fact of discriminatory animus

without inference or presumption.” Id. (internal

quotation marks and alteration omitted).

2. Open Position

Plaintiff is unable to establish a prima facie case of

discrimination for failure to hire him as a camera

operator on the Bob Hearts series because there were

no open positions available at the time he expressed

an interest to the persons who made that decision. “In

general, showing that there was in fact a vacancy is

necessary to establish an employment discrimination

claim.” Palmer v. Cognizant Tech. Sols. Corp., No. 2:17cv-06848-DMG-GJS, 2022 WL 18214014, at *23 (C.D.

Cal. Oct. 27, 2022). This threshold requirement applies

whether Plaintiff is attempting to make a prima face

case using direct evidence or under the McDonnell

Douglas framework with indirect evidence. See Chavez

v. Tempe Union High Sch. Dist. No. 213, 565 F.2d 1087,

1091 (9th Cir. 1977) (“We note that these [McDonnell

Douglas] four elements assume the existence of a fifth:

that the position in question had not already been

filled before it was sought by the complainant.

Necessarily, the failure to prove the existence of a job

opening is a fatal defect in a prima facie case of overt

discrimination.”); Rowell v. Sony Pictures Television

Inc., 743 F. App’x 852, 854 (9th Cir. 2018) (“[W]e have

never suggested that proffering direct evidence alters

the character of an adverse employment action in a

retaliatory failure-to-hire claim ... such a claim is

premised on an employer’s rejection of a candidate for

an open position. Indeed, it stands to reason that an

21a

adverse employment action against a prospective

employee arises only if there is employment to be had

in the first place. Thus, whatever the substance of

Rowell’s purported direct evidence, it cannot overcome

her failure to satisfy a necessary criterion for stating

an actionable retaliatory failure-to-hire claim.”) (internal

citations and quotation marks omitted). Such a

threshold requirement that there be an open position

available makes sense under the Supreme Court’s “but

for” causation test for Section 1981 claims. “[I]f there

was no vacancy, then the discriminatory purpose cannot

have been the reason for the plaintiff ’s rejection –

because the reason for the rejection was that there was

no vacancy.” Palmer, 2022 WL 18214014 at *23.

It is undisputed that on June 6, 2019, Lee sent an

email to Green and Cecil with her choices for the

camera operator positions for the Bob Hearts series.

See SGD 60-61. It is undisputed that on that day,

Green and Cecil approved Lee’s selections without

objections. See id. 61. It is therefore undisputed that

on June 6, 2019, Lee, Green, and Cecil all understood

that the camera operator positions had been filled for

the Bob Hearts series. See id. at 62-63. It is undisputed

that at the time Lee was selecting camera operators,

no one mentioned Plaintiff to Lee and Armstrong

never communicated interest directly to Lee about the

position. See id. 74-75. Rather, it is undisputed that

Plaintiff did not reach out to Cecil about a position as

a camera operator on the Bob Hearts series until June

10, 2019.4 See id. 78. At that time, Plaintiff asked to

verify that he would be working on the show. See id.

After being told that Plaintiff did not have a job as a

Plaintiff also testified that he reached out to Steve Silver

about the Bob Hearts series camera operator position on June 11,

2019. See 2024 Brian Armstrong Deposition Transcript 114:1516.

22a

camera operator on the Bob Hearts series by Cecil, on

June 11, 2019, Plaintiff asked for his IMDB page to be

submitted to Lee for consideration. See id. 82. It is

undisputed that Cecil did not forward Plaintiff ’s email

on to Lee because the camera operator positions on the

Bob Hearts series had all been filled by June 11, 2019.

See id. 83. Thus, by the time Plaintiff expressed an

interest or applied for a position as camera operator

for the Bob Hearts series, there was no position open

for him. As there was no vacancy available, Plaintiff

cannot make out a prima facie case of racial discrimination in the failure to hire him for the job.

Plaintiff ’s opposition does not grapple with this fatal

flaw. Instead, Plaintiff states that he did not apply for

the position because he was not told Silver would not

be the Director of Photography on the Bob Hearts

series, he was not told that he would not be working

on the series, and he did not find out Lee would be the

Director of Photography until June 2019. See Opp. at

19. For Plaintiff ’s argument to have merit, he would

need to establish that he had previously been hired (or

at least had been given a binding commitment by an

appropriate person that he would be hired) on to the

Bob Hearts series as a camera operator, which is why

he never applied for the position before June 11, 2019.

Plaintiff ’s attempts to prove he had been previously

hired are unconvincing.

Plaintiff contends that it was common for some

employees working on a Lorre show to be asked to

work on another Lorre show. See ADF 6. While that

may have been true, simply pointing to past practice is

not sufficient to establish Plaintiff ’s future employment. Especially when Plaintiff understood that he

was hired as a camera operator only on a daily basis.

See SGD 9-11. To bolster his claim, Plaintiff points to

23a

several statements Lorre and Roth allegedly made to

him and others during the last Big Bang series

concerning future employment. See ADF 52 (Roth

allegedly says, “Don’t you worry. This family will never

be broken up.”); ADF 53 (Lorre allegedly says, “I hope

you come with the rest of your guys, meaning camera

people, onto the next one.”); ADF 57 (Lorre allegedly

says, “You’re worried about the next show. You haven’t

let me down. I’m not going to let you down.”); ADF 58

(Roth allegedly says, “You guys will always have a

place here.”); ADF 59 (Roth and Lorre allegedly tell

people they would be with them forever); ADF 60

(Lorre allegedly says, “Don’t you worry. We got other

things coming for you. Army, you’re gold. Why in the

world would you never have as long a career as you

ever want with me.”); ADF 61 (Roth allegedly says,

“It’s not over. You’ll always have a job here at Warner

Bros. ... as long as Chuck and I are here.”); ADF 62

(Lorre allegedly says, “We got more stuff coming up.

So this isn’t the end.”). These statements are not

sufficient to establish Plaintiff was hired on the Bob

Hearts series. The statements themselves are not any

type of job offer. Rather, they appear to be vague

statements made with good intentions about the

desire to work together in the future. Such remarks

cannot reasonably be construed as an offer to work on

the Bob Hearts series (which had not yet been ordered

to series). It is notable that Plaintiff has not brought

any breach of contract or promissory estoppel claims

based on such statements.

Additionally, Lorre and Roth were not involved in

the hiring of camera operators for the Bob Hearts

series. Plaintiff ’s reliance on statements from Lorre

and Roth for employment would also run afoul of his

admitted past practice of working on Lorre productions.

When Plaintiff was hired to work on his previous Lorre

24a

shows, the offer never came from Lorre or Roth, but

instead from the Director of Photography Silver, as

Plaintiff admits is the industry practice. See SGD 3, 7,

29. Here, Plaintiff does not allege that Silver, or any

other Director of Photography, ever reached out to him

to work on the Bob Hearts series, as would have been

customary from his previous experience. As Plaintiff ’s

career shows, it would appear unusual for any type of

concrete employment offer to come from the head of

WBTV or Lorre. Further, Plaintiff ’s own testimony

casts doubt on any reliance he should have made on

Lorre’s or Roth’s vague statements. Plaintiff testified

that near the end of Big Bang he congratulated Cecil

on being the producer for the Bob Hearts series and

told her “It’s going to be great working for you, you

know, on the next one.” 2024 Brian Armstrong Deposition

Transcript (“2024 Armstrong Trans.”) 214:18-215:1. In

reply, Plaintiff alleges Cecil told him, “Well, I wish that

were the case,” and “I wouldn’t count on it.” Id. 215:224. Similarly, Plaintiff testified that near the end of Big

Bang, he also congratulated Green on being a producer

for the Bob Hearts series and expressed excitement

at working together again, to which Green told him,

“Don’t count on it, Army.” Id. 220:11-20. Plaintiff

alleges that these sentiments from Cecil and Green

were repeated to him at the Big Bang wrap party on

May 3, 2019. See ADF 65-66. Therefore, according to

Plaintiff, he was told by the producers of the Bob

Hearts series that he was unlikely to work on the show.

In sum, Plaintiff did not apply for the camera

operator position for the Bob Hearts series until June

11, 2019. Plaintiff has not shown that he was hired on,

or was reasonably promised to be hired on, the Bob

Hearts series prior to that date. The camera operator

positions were filled as of June 6, 2019. At the time

Plaintiff applied for the roles, there were no openings,

25a

meaning Plaintiff cannot make out a prima facie case

of racial discrimination for Defendants’ failure to hire

him.

3. Direct Evidence

While the Court would find that Plaintiff has not

shown a prima facie case of failure to hire for racial

discrimination because there was no open position

available, the Court would also find that Plaintiff has

not shown direct evidence of racial discrimination

regarding Defendants’ failure to hire him. “Direct

evidence is evidence which, if believed, proves the fact

of discriminatory animus without inference or presumption.” Vasquez, 349 F.3d at 640 (internal quotation

marks and alteration omitted). Plaintiff ’s Opposition

is not clear as to exactly what direct evidence of race

discrimination there is involving Armstrong’s failure

to be hired. Plaintiff points to Silver not being hired as

Director of Photography by Green and Cecil for the

Bob Hearts series, which Armstrong claims lead to him

also not being hired. See Opp. at 4. Plaintiff also claims

that there is a multitude of evidence that Lee made

her decisions on the basis of race. See id. Neither of

these examples presents direct evidence, without the

need for any inferences or presumptions, of racial

discrimination regarding the failure to hire Plaintiff.

Even assuming for the sake of argument that Silver

was not hired by Green and Cecil because of his race,5

There are a multitude of inferential leaps required with

respect to Plaintiff’s contention that Silver was not hired based

on race. Cecil and Green stated that Silver was not hired because

they felt he did not have the time to commit to the show based on

his position of Director of Photography on Mom (another

television show) and because the Bob Hearts series was to have a

hybrid aesthetic. See Mot. at 12. Essentially, Plaintiff tries to

paint these explanations as pretextual because Lee worked on

26a

that does not serve as direct evidence of race

discrimination as to Armstrong’s failure to be hired.

There are multiple necessary inferences required to

link Silver’s not being hired due to race to Plaintiff.

One would have to infer that Silver’s not being hired

due to race by Green and Cecil would also apply to the

hiring of camera operators, even though Plaintiff

admits by industry standards that producers hire the

Director of Photography, but not camera operators.

Then, there would also be another required leap that,

even if Silver had been hired, Plaintiff would also have

been chosen for the Bob Hearts series. There are

simply too many links in the logical chain required to

equate any supposed racial discrimination in the

failure to hire Silver to be direct evidence of the failure

to hire Armstrong.

Similarly, Plaintiff has not shown direct evidence

that Lee – the principal decisionmaker at issue – made

decisions on the basis of race. Plaintiff claims that Lee

adhered to the Commitment in hiring camera operators for the Bob Hearts series. To Plaintiff, adhering to

the Commitment is direct evidence of racial discrimination against white people because the Commitment

is discriminatory and excludes white people. As evidence,

Plaintiff quotes the Commitment in part to say “... we

must all ensure there is greater inclusion of ... people

of color ... in greater numbers ... behind the camera.”

another show (Mad About You) while working on the Bob Hearts

series. See Opp. at 17. Even if Lee had similar shooting schedules

to Silver, it requires many inferential leaps to conclude hiring Lee

instead of Silver was then based on race. Further, even assuming

that Lee was hired instead of Silver due to the Commitment, it

requires additional inferences to prove that Lee was hired instead

of Silver because she is a person of color, and not because she is a

lesbian woman, both underrepresented groups mentioned in the

Commitment.

27a

Opp. at 8. Plaintiff mischaracterizes the Commitment

through his selective quoting. The sentence at issue

states: “Together with other production companies,

networks, guilds, unions, talent agencies and others in

the industry, we all must ensure there is greater

inclusion of women, people of color, the LGBTQ+

community, those with disabilities and other underrepresented groups in greater numbers both in front of and

behind the camera.” Docket No. 67-2 at 2142. Read in

full context, this sentence clearly is not racially

discriminatory resulting in the exclusion of white

people. While Plaintiff highlights the use of people of

color, the Commitment also states that it seeks to

ensure greater inclusion of women, the LGBTQ+

community, those with disabilities, and underrepresented groups – all of which includes white individuals

from these groups. Thus, the Commitment is not

racially discriminatory against white individuals as it

actively seeks to include in greater numbers white

people from underrepresented groups.

As additional evidence of the Commitment’s discrimination, Plaintiff quotes the Commitment in part

to say “in the early stages of the production process, we

will engage with our writers, producers, and directors

to create a plan for implementing this commitment.”

Opp. at 8. Again, Plaintiff ’s artful quoting of the

Commitment in an attempt to paint it as a discriminatory hiring policy fails with proper context. Looking

to the above sentence concerning creating greater

inclusion, it clearly states it is a pledge “[t]ogether with

other production companies, networks, guilds, unions,

talent agencies and others in the industry.” Docket No.

67-2 at 2142. The inclusion of such other entities

shows this is an aspirational statement, not a policy

specifically of Defendants. Further, when honing in on

the actions Defendants (through WarnerMedia) will

28a

take, the Commitment states in full: “For our part,

WarnerMedia pledges to use our best efforts to ensure

that diverse actors and crew members are considered

for film, television and other projects, and to work with

directors and producers who also seek to promote

greater diversity and inclusion in our industry. To that

end, in the early stages of the production process, we

will engage with our writers, producers, and directors

to create a plan for implementing this commitment to

diversity and inclusion on our projects, with the goal of

providing opportunities for individuals from underrepresented groups at all levels.” Id. (emphasis added).

The plain language shows that Defendants (through

WarnerMedia) are committing to proving opportunities

for underrepresented individuals (including underrepresented white people) to be considered for greater

opportunities in the industry. This is far from a hiring

mandate designed to exclude white individuals from

future work. Moreover, these types of diversity statements have been found to be nonactionable. See

Bernstein v. St. Paul Companies, Inc., 134 F. Supp. 2d

730, 739 n.12 (D. Md. 2001) (“A company’s (or its

CEO’s) commitment to ‘diversity,’ if expressed in terms

of creating opportunities for employees of different

races and both genders, or fostering workplace tolerance,

is not proof of discriminatory motive with respect to

any specific hiring decision. Indeed, it would be difficult

to find today a company of any size that does not have

a diversity policy.”) (internal citation omitted); c.f.

Ocegueda on behalf of Facebook v. Zuckerberg, 526 F.

Supp. 3d 637, 651 (N.D. Cal. 2021) (“[C]ourts hold that

similar [diversity] statements are non-actionable puffery

or aspirational (and hence immaterial).”).

Aside from Plaintiff’s misreading of the Commitment,

there is no evidence that Lee even considered the

Commitment when she hired for the positions. In fact,

29a

Lee declares that she “did not rely on the

[Commitment] when making [her] hiring decisions on

the first season of the [Bob Hearts] series. Moreover,

[she] did not receive any instruction from WBTV or

anyone associated with [the Bob Hearts series] to hire,

or to give hiring preference to, camera operators who

were not White/Caucasian or any other protected

category for that matter.” Declaration of Patti Lee

(“Lee Decl.”), Docket No. 64-4 ¶ 35. Further, in her

deposition, when discussing diversity and inclusion

and the Commitment, Lee consistently stated that her

understanding of the Commitment, and her own

principles of diversity and inclusion, is to provide

opportunities for people from all backgrounds, not to

exclude white individuals. See 2024 Patti Lee

Deposition Transcript (“2024 Lee Trans.”) 48:1-12 (“I

have a workplace that had people from all walks of life

and beliefs.”); 54:16-23 (“I believe inclusivity could be

people – it can be like men or women.· It can be – or

gender nonbinary.· It could mean people with different

beliefs.· It could mean different religious beliefs.· It

could mean people of different color. ·None of these are

– I think inclusivity is about having an open space for

people to all have an opportunity.”); 58:13-21 (“...because I

have to say that reading the statement is a general

aspiration for Warner Bros., and I – in my – looking for

camera operators and other crew, I – I took into

consideration people from many different walks of life.

·So if by doing that, did I follow the aspiration, then

yes, I did.”).

The actual hiring process and results supports the

lack of direct evidence of racial discrimination by Lee.

The majority of people that Lee considered for the

available camera positions were white. See Lee Decl.

¶ 13. Ultimately Lee hired based on qualifications,

interest, availability, and personality. See id. Under

30a

that criteria, the camera operators on the Bob Hearts

series that were chosen included three white males

and one black woman. There is no suggestion that the

single black female cameraman was less qualified

than the other male hirees or the Plaintiff. Those

results do not suggest any anti-white animus.

The other possible arguments Plaintiff could make

for direct evidence of racial bias are similarly unpersuasive. Lorre’s allegedly using a Yiddish racial slur

could be probative of racial bias,6 but Lorre was not

involved in the hiring of camera operators for the Bob

Hearts series. See SGD 67;7 see also Vasquez, 349 F.3d

at 640 (“The only evidence Vasquez offers are the

remarks of Berglund. However, Berglund was not the

decisionmaker, and Vasquez has offered no evidence of

discriminatory remarks made by Leeds. Therefore,

Vasquez must show a nexus between Berglund’s discriminatory remarks and Leeds’ subsequent employment

decisions.”). Thus, there are necessary inferences that

Plaintiff references Lorre’s purported use of the word

“schvartze” (see SGD 62-63), which is Yiddish slang for a black

person and considered by some to be a racial slur. See Oxford

English Dictionary, https://www.oed.com/dictionary/schvartze_n?

tl=true. It is unclear how Lorre’s using the word schvartze to

Plaintiff (who is white) can be raised by Plaintiff to establish antiwhite animus.

Plaintiff attempts to dispute the fact Lorre was not involved

in the hiring of camera operators for the Bob Hearts series by

claiming “Lorre had also previous involvement in the selection of

Brian Armstrong as a television camera operator, which establishes

a practice of doing so.” SGD 67. However, Plaintiff cites to nothing

in the record to support this claim. Rather, in his deposition, Lorre

repeatedly states that he does not get involved with the hiring of

crew like camera operators. See 2024 Chuck Lorre Deposition

Transcript 100:10-101:2.

31a

would be needed to connect Lorre’s potential racial

animus with the decision not to hire Plaintiff.

Similarly, the alleged comments made by Green and

Cecil on May 3, 2019, regarding diversity do not by

themselves constitute direct evidence of race discrimination. Plaintiff alleges that on May 3, 2019, Cecil told

him “didn’t you see the DEI statement. Well, people

like you are not – don’t have much of a future in this

business.” ADF 65. Plaintiff further claims Cecil told

him “It’s all true Brian. You know, the things you heard

about this diversity thing is true ... things you’ve

heard . . . about the hiring of ” and then listed African

Americans. See id. Plaintiff similarly claims that

Green told him “Yep. It looks like we are an endangered species,” and “Well, Kristy has been ordered to

follow this new diversity hiring program which

includes, you know, we got to hire more Blacks.” ADF

66. Defendants contest the Court relying on any of

these alleged statements made by Green and Cecil,

arguing they are inadmissible hearsay. The Court is

unsure whether such statements are admissible.

Granted, “[u]nder Federal Rule of Evidence 801(d)(2)(D),

a statement is not hearsay and may be admitted

against an opposing party if the statement ‘was made

by the party’s agent or employee on a matter within

the scope of that relationship and while it existed.’ The

Rule sets forth three elements necessary for admitting

a statement that would otherwise be excluded as

hearsay: (1) the statement must be made by an agent

or employee of the party against whom the statement

is being offered; (2) the statement must concern a

matter within the scope of that employment relationship; and (3) the statement must be made while the

declarant is yet employed by the party.” Weil v. Citizens

Telecom Servs. Co., LLC, 922 F.3d 993, 999 (9th Cir.

2019). Green and Cecil seemingly were agents or

32a

employees of Defendants at the time they made these

statements. However, it is unclear whether discussion

of the future Bob Hearts series, which had not yet been

picked up, would qualify as a matter within the scope

of their employment relationship with Defendants as

Big Bang producers. If Plaintiff wishes for these

statements to be considered as admissible evidence,

Plaintiff should explain at the hearing how they are

admissible.

Regardless, assuming these statements could be

admissible, they are not direct evidence of race

discrimination. Cecil and Green only approved Lee’s

selection of camera operators, but did not select any

themselves. Further, Plaintiff mischaracterizes his

own deposition testimony to try and create the illusion

that Cecil and Green were only discussing race. In

Plaintiff ’s depositions, in which the account of Green

and Cecil’s statements differ significantly, Plaintiff

makes clear Green and Cecil are discussing more than

just race. For instance, Plaintiff testified that Cecil,

when talking about hiring based on diversity, started

with African Americans, but right away she said,

“Females,” and “went on to say – and, you know, all the

other stuff listed in the memos.” 2021 Brian Armstrong

Deposition Transcript (“2021 Armstrong Trans.”)

116:1-11. Similarly, Green did not just say Cecil had

been ordered to hire more African Americans, but also

more “Women” and “of course LGBTQ.” See id. 118:112. If anything, Plaintiff has alleged that Cecil and

Green followed the Commitment, which, as discussed

above, involves the incorporation of multiple

underrepresented groups, and does not stand only for

the exclusion of white people. In sum, Plaintiff has

failed to show direct evidence of race discrimination

involved with Defendants’ failure to hire him as a

camera operator on the Bob Hearts series.

33a

4. McDonnell Douglas Framework

While the Court would find that Plaintiff has not

shown a prima facie case of failure to hire for racial

discrimination because there was no open position

available, the Court would also find that Plaintiff ’s

claim fails under the McDonnell Douglas framework.

Defendants claim that Plaintiff cannot make out a

prima facie case for racial discrimination because he

never applied for the job and it was not open at the

time. See Mot. at 20. Defendants argue that Plaintiff

never applied because he never communicated any

interest to Lee in the position, and Cecil did not

understand his June 11, 2019 email as an application,

but merely Armstrong expressing frustration. See id.

at 21. The Court would disagree with Defendants.

While it is undisputed that Plaintiff did not ever

communicate interest directly to Lee for the position,

his June 11, 2019 email to Cecil can fairly be characterized as an application for the job. The subject line of

the email is “My application for ‘Bob [heart emoji]’s.’”

Docket No. 64-6 at 11-12. Further, in the email,

Plaintiff, asks Cecil to forward his IMDB page “to Patti

Lee for consideration.” Id. While Cecil may have taken

this email as Plaintiff simply expressing frustration, it

is clear that Armstrong was attempting to apply for

the camera operator position – a position in which

there was no public job posting and Lee did not accept

applications. See Lee Decl. ¶ 11. However, for the

reasons stated above, the Court would find that

Plaintiff fails to make out a prima facie case of racial

discrimination because there was no open position

available at the time he applied on June 11, 2019.

Even if Plaintiff were to have made out a prima facie

case, which he does not, the Court would find that

Defendants have offered a proper justification for the

34a

hiring decisions – Lee chose to work with other

individuals she believed were qualified and did not

know Armstrong was interested. Plaintiff has failed to

put forward any evidence to show that such an

explanation is pretextual. Plaintiff points to the

Commitment, which as discussed above, is not a

discriminatory hiring policy excluding white people.

Plaintiff points to evidence of racial statements

concerning the hiring of workers for the Bob Hearts

pilot, which is not germane to the hiring of camera

operators on the Bob Hearts series. Plaintiff points to

statements made by Lorre, Green, and Cecil on May 2

and 3, 2019, all of which, as discussed above, do not

rebut Defendants’ explanation.

In sum, the Court would GRANT Defendants’ motion

for summary judgment as to Plaintiff ’s discriminatory

failure to hire theory. When Plaintiff expressed

interest in the camera operator position, there were no

available positions as they had all previously been

filled by Lee. This alone is fatal to Plaintiff ’s claim as

there was no open position, meaning he cannot show

race was the but for cause for his failure to be hired.

Further, the Court would find that there was not direct

evidence of racial discrimination in not hiring Plaintiff

for the position, and that Defendants expressed

legitimate, non-pretextual reasons for its hiring

decisions. Thus, the Court would dismiss Plaintiff ’s

failure to hire theory.8

While the issue was not raised by the parties, it would appear

to the Court that Plaintiff’s failure to hire claim would be time

barred. Defendants assert that the statute of limitations for a

Section 1981 claim is four years, citing to 28 U.S.C. § 1658 – the

general federal four-year statute of limitations for statutes

passed after December 1, 1990. However, the general four-year

statute of limitations does not apply to every Section 1981 claim,

35a

B. Retaliation

Defendants claim that Plaintiff ’s retaliation theory

fails as a matter of law for similar reasons as his

discrimination claim. Defendants argue that Plaintiff

cannot make out a prima facie case of retaliation

because he never made a protected complaint about

race discrimination, he was not subject to an adverse

action because all positions had been filled prior to his

call with Sidell, and Lee was unaware of any complaint

Armstrong may have made. See Mot. at 26-27. Further,

even if Plaintiff could make out a prima facie case,

Defendants argue that Plaintiff cannot prove that but

for his protected complaint he would have been hired.

See id. at 27. Plaintiff responds that retaliation claims

typically require only an act that would discourage a

worker from engaging in a protected activity. See Opp.

at 4. Plaintiff claims that he did complain about race

discrimination and in return Sidell threatened him

including failure to hire claims. “Section 1981 was amended in

1990 to include a four-year limitations period for certain actions;

however, this period does not apply to those actions which were

cognizable under the pre-1990 version, such as plaintiffs’ failure

to hire claim.” Lukovsky v. City & Cnty. of San Francisco, 535 F.3d

1044, 1048 n.2 (9th Cir. 2008). See Johnson v. Lucent Techs. Inc.,

653 F.3d 1000, 1007 (9th Cir. 2011) (“[I]t is incontestable that

some § 1981 claims continue to be subject to the most analogous

state statute of limitations.”). Instead, it appears that Plaintiff’s

failure to hire claim would be subject to California’s two-year

statute of limitations for personal injury. See Cal. Civ. Proc. Code

§ 335.1. See also Cole v. Lynwood Unified Sch. Dist., 678 F. App’x

595, 596 (9th Cir. 2017) (“Cole’s racial discrimination claim under

42 U.S.C. § 1981 is also time-barred.... Because Cole did not file

her complaint within two years of being denied the promotions,

her § 1981 claim based on racial discrimination is untimely.”).

However, as the parties have not yet raised this issue, the Court

would not find it appropriate to decide the matter on these

grounds at this time.

36a

not to speak of or pursue his complaint or he would

never work for the studio again. See id. at 21. Further,

Plaintiff alleges that Defendants put him on the do-nohire list in retaliation for his complaint. See id.

Defendants reply that any alleged direct evidence of

retaliation is irrelevant as there were no open camera

positions available when Plaintiff spoke to Sidell. See

Reply at 21. Further, Defendants claim that Lee was

not aware of Armstrong’s complaint, and reiterate that

he did not complain about racial harassment, as he

stated in his deposition, and his complaint was not a

but for cause for not being hired. See id. at 21-23.

“Section 1981 prohibits racial discrimination in

taking retaliatory action.” Surrell, 518 F.3d at 1107

(internal quotation marks omitted). “To establish a

prima facie case of retaliation, a plaintiff must prove

(1) she engaged in a protected activity; (2) she suffered

an adverse employment action; and (3) there was a

causal connection between the two. Once established,

the burden shifts to the defendant to set forth a

legitimate, non-retaliatory reason for its actions; at

that point, the plaintiff must produce evidence to show

that the stated reasons were a pretext for retaliation.”

Id. “This standard requires a plaintiff to show that the

position for which she applied was eliminated or not

available to her because of her protected activities.”

Ruggles v. California Polytechnic State Univ., 797 F.2d

782, 786 (9th Cir. 1986).

Plaintiff is unable to make out a prima facie case of

retaliation because he cannot show any causal

connection between his complaints regarding racial

discrimination and an adverse employment action.

The parties disagree as to whether Plaintiff made a

protected complaint of race discrimination. Plaintiff

claims that he did make such a complaint in his June

37a

10, 2019 email to Cecil claiming he had been hearing

about rumors that are illegally vicious, in his June 11,

2019 email to Cecil where he cited “McDonald vs.

Santa Fe Trail Transpo. Co. (1976)” and made

references to diversity hiring being unconstitutional

and a violation of his civil rights, and on the phone

with Sidell where he said he believed he had been

discriminated against on the basis of race and color in

not being selected as a camera operator for the Bob

Hearts series. See Opp. at 20-21. Defendants claim

that Plaintiff previously testified that he never made

any complaints about being mistreated because of his

race, and thus his self-serving declaration should be

ignored. See Reply at 22-23. At this stage of

proceedings, taking all inferences in Plaintiff ’s favor,

Plaintiff has established a genuine dispute as to

whether he did make a complaint regarding racial

discrimination.

Even if Plaintiff did make a complaint, he cannot

show any causal connection to an adverse employment

action because of his complaint. The adverse

employment action Plaintiff complains of is not being

hired as a camera operator on the Bob Hearts series.

However, as discussed above, the camera operator

positions for the Bob Hearts series were filled as of

June 6, 2019. The first instance when Plaintiff could

have possibly taken action that could be considered a

complaint was in his email to Cecil on June 10, 2019.

Given Plaintiff ’s complaint came at the earliest four

days after the positions had already been filled, the

failure to hire Plaintiff as a camera operator for the

Bob Hearts series could not be caused by Plaintiff ’s

complaint of race discrimination. “Inherent in the

standard for retaliatory failure-to-hire is the existence

of an open ‘position’ to which the plaintiff applied.”

Rowell, 743 F. App’x at 854. Given the alleged adverse

38a

employment action – not hiring Plaintiff – took place

before Plaintiff engaged in his protected activity, there

is “no evidence, direct or circumstantial, from which a

jury might infer causation.” Manatt v. Bank of Am.,

NA, 339 F.3d 792, 802 (9th Cir. 2003). Thus, Plaintiff

has failed to establish a prima facie case of retaliation

due to racial discrimination. The Court would GRANT

Defendants’ motion for summary judgment as to

Plaintiff ’s retaliation theory.

C. Hostile Work Environment

Defendants argue that Plaintiff ’s hostile work

environment theory fails as a matter of law. First,

Defendants contend that the statute of limitations for

Plaintiff ’s hostile work environment claim is four

years, meaning the only applicable time period is a

short window of time from April 18, 2019 to May 3,

2019. See Mot. at 28. In that time period, Defendants

claim that Plaintiff did not allege any harassment

based on race. See id. at 28-29. Further, Defendants

maintain that no harassment in a two-week period

could be so severe or pervasive as to alter the conditions of his employment. See id. at 29. Additionally,

Defendants argue that Plaintiff cannot show that

Defendants as employers were liable for any alleged

harassment as they were not put on notice. See id.

Plaintiff argues that a large corporation instituted a

discriminatory commitment to exclude white and

Caucasian people, which predictably caused a very

hostile work environment replete with pervasive references to race and severe comments made to Plaintiff.

See Opp. at 4. Plaintiff claims that the statute of

limitation for a hostile work environment claim is

based on the last date of the last act in a continuous

hostile work environment, which here was from late

2018/early 2019 to June 2019 due to Defendants

39a

attempts to implement the Commitment. See id. In

that time period, Plaintiff points to comments made by

Miller, Higgins, Ben Steeples (“Steeples”), Silver, and

many other crew members about race that he found to

be offensive. See id. at 7-14. Even without considering

those acts, Plaintiff claims that comments made about

race by Lorre, Cecil, and Green on May 2 and 3, 2019,

alone constitute a hostile work environment. See id. at

14-15. Further, Plaintiff contends that all of the

statements were made on set where Defendants either

knew or should have been aware of them. See id. at 15.

Defendants reply that the continuing violation doctrine

does not apply here. See Reply at 24. Further,

Defendants argue that regardless the speech and

conduct alleged in and outside of the statute of

limitations is not severe or pervasive enough to

constitute a hostile work environment. See id. at 2526. Additionally, Defendants reiterate that Plaintiff

cannot show they are liable as an employer for such

actions. See id. at 26 27.

1. Legal Standard

“Hostile work environment claims under Title VII

contain the same elements of a § 1981 hostile work

environment claim and, thus, the legal principles

guiding a court in a Title VII dispute apply with equal

force in a § 1981 action.” Freeling v. PCX, Inc., No. 8:23cv-00173-KK-KES, 2023 WL 6194259, at *4 (C.D. Cal.

Aug. 15, 2023) (internal quotation marks omitted). “To

succeed on a hostile work environment claim based on

race, the plaintiff must demonstrate: (1) that he was

subjected to verbal or physical conduct of a racial ...

nature; (2) that the conduct was unwelcome; and

(3) that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment

and create an abusive work environment.” Reynaga,

40a

847 F.3d at 686 (internal quotation marks omitted).

“In assessing whether a work environment is

sufficiently hostile, the court examines the frequency

of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Id.

“The required level of severity or seriousness varies

inversely with the pervasiveness or frequency of the

conduct.” Id. (internal quotation marks and citation

omitted). “A hostile work environment, by its very

nature involves repeated conduct.” Freeling, 2023 WL

6194259 at *4 (internal quotation marks omitted).

“Section 1981, like Title VII, is not a general civility

code.” Manatt, 339 F.3d at 798 (internal quotation

marks omitted). “[S]imple teasing, offhand comments,

and isolated incidents (unless extremely serious) will

not amount to discriminatory changes in the terms

and conditions of employment.” Id. (internal quotation

marks omitted). “A plaintiff must show that the work

environment was both subjectively and objectively

hostile.” McGinest v. GTE Serv. Corp., 360 F.3d 1103,

1113 (9th Cir. 2004). “Simply causing an employee

offense based on an isolated comment is not sufficient

to create actionable harassment under Title VII.

However, the harassment need not cause diagnosed

psychological injury. It is enough if such hostile

conduct pollutes the victim’s workplace, making it

more difficult for her to do her job, to take pride in her

work, and to desire to stay on in her position.” Id.

(internal citations and quotation marks omitted).

2. Statute of Limitations

The parties disagree as to the applicable statute of

limitations period for Plaintiff ’s hostile work environment theory. Defendants claim that the four-year

41a

statute of limitations for hostile work environment

claims under Section 1981 means that the only

relevant time period is April 18, 2019 (four years prior

to the filing of this lawsuit) to May 3, 2019 (the last

day of Plaintiff ’s employment). Plaintiff instead claims

that the statute of limitation for a hostile work

environment is based on the last date of the last act in

a continuous hostile work environment, and here the

hostile work environment was continuously hostile

from late 2018/early 2019 to June 2019 because of

the Commitment and management’s attempts to

implement it.

Essentially, what Plaintiff seeks is to apply is the

continuous violation doctrine to his Section 1981

hostile work environment theory. “The continuing

violations doctrine allows a court, in some instances,

to consider alleged unlawful behavior that would

otherwise be time-barred.” Lelaind v. City & Cnty. of

San Francisco, 576 F. Supp. 2d 1079, 1092 (N.D. Cal.

2008). For Title VII hostile work environment claims,

“a court may consider the entire scope of unlawful

behavior, including behavior outside the statutory

time period, provided that all acts which constitute the

claim are part of the same unlawful employment

practice and at least one act falls within the time

period.” Id. Plaintiff seeks to transpose the continuing

violation doctrine applicable to Title VII hostile work

environment claims to Section 1981 claims, but does

not cite to any case law supporting such a proposition.

While Plaintiff does not point to any authority, it

appears that in the Ninth Circuit the continuing

violation doctrine is applicable to such claims. See

Cherosky v. Henderson, 330 F.3d 1243, 1246 n.3 (9th

Cir. 2003) (“Although Morgan involved Title VII of the

Civil Rights Act of 1964, the Supreme Court’s analysis

of the continuing violations doctrine is not limited to

42a

Title VII actions. It applies with equal force to the

Rehabilitation Act and to actions arising under other

civil rights laws.”); Lelaind, 576 F. Supp. 2d at 1093

(“In the Ninth Circuit, the continuing violations

doctrine applies to claims pursuant to 42 U.S.C.

sections 1981 and 1983 in the same manner as the

doctrine applies to claims pursuant to Title VII.”).

There are “two applications of the continuing

violations doctrine: first, to a series of related acts, one

or more of which falls within the limitations period,

and second, to the maintenance of a discriminatory

system both before and during the limitations period.”

Bird v. Dep’t of Hum. Servs., 935 F.3d 738, 746 (9th Cir.

2019) (cleaned up). When considering whether preand post- limitations incidents are sufficiently related,

courts consider whether “they involved the same type

of employment actions, occurred relatively frequently,

and were perpetrated by the same managers – and

were not isolated, sporadic, or discrete.” Lelaind, 576

F. Supp. 2d at 1093 (cleaned up). “[T]he systematic

branch allowed the plaintiff to recover for acts that

occurred prior to the limitations period as long as

(1) those acts were conducted pursuant to a policy or

practice that remained in effect within the statute of

limitations period and (2) the plaintiff remained

subject or susceptible to the policy within the limitations period.... The theory behind the systematic

branch was that every day the plaintiff was subject to

the policy or practice constituted a new violation

sufficient to extend the statute of limitations period.”

Bird, 935 F.3d 738, 747 (9th Cir. 2019) (internal

quotation marks omitted).

Here, the Court would not find that Plaintiff has

proven that the continuous violation doctrine should

apply to this case to bring in actions prior to April 18,

43a

2019. For the reasons discussed above, the Court does

not construe the Commitment as an employment

policy of Defendant, much less a systematic, racially

discriminatory system biased against white people.

Next, the racial comments that Plaintiff complains

about by crew members on Big Bang prior to April 18,

2019, are better seen as isolated, sporadic, or discrete,

and not sufficiently related so as to form a continuous

violation. The pre-April 18, 2019 comments were

almost all one-off comments made by different individuals. See ADF 41, 46-51; 54, 56. Further, Plaintiff

testified that many of these comments were made after

the speakers “took [him] aside quietly, like everybody

really,” because “nobody can be heard talking about

anything bad.” 2021 Armstrong Trans. 104:11-15.

Moreover, many of the comments made are not related

to the Bob Hearts series, or each other, as they

concerned different future shows. Silver’s, Steeples’,

and Johnny Witmer’s (“Witmer”) comments were

about hiring decisions being made by Miller seemingly

for the Bob Hearts pilot. See id. 100:18-101:3, 101:24102:14, 111:10-21. Jamie Hitchcock’s (“Hitchcock”),

David Pearce’s (“Pearce”), T. Ryan Brennan’s (“Brennan”),

and Todd Slater’s (“Slater”) comments were about

hiring decisions being made for the show Mom. See id.

104:11-24, 105:12-106:6, 107:2-12, 107:24-108:22. Thus,

the Court would not find Plaintiff has established a

continuing violation so as to include pre-limitations

comments.

3. Crew Member Statements

Even if the Court were to construe this situation as

a continuing violation to include the pre-limitation

comments, the Court would find that those comments

are not sufficient to establish a hostile work environment claim. As discussed above, the majority of these

44a

comments were to Plaintiff in isolated situations as

offhand comments speculating about future employment opportunities. Moreover, most of the comments

themselves refer to diversity and the Commitment,

which in and of itself is not of a racial nature given the

Commitment referenced a variety of underrepresented

groups, including people of color, women, LGBTQ+,

disabled individuals, etc. For example, Plaintiff alleges

that Silver said, “Carol has made it known that we

need to work off of the Warner Brothers new diversity

hiring program not only in front of the camera, but

behind the camera. In other words, our employees now

have to fit a certain demographic,” 2021 Armstrong

Trans. 100:21-101:1; Hjorth said, “Well, you know, the

diversity thing ... Carol is on fire to make sure that not

only is that letter followed to the T,” Id. 103:22-24;

Pearce said, “Well, Army ... I guess it’s finally happened

... it looks like ... we’ve been diversified out of the

business.,” Id. 105:15-18; Brennan said, “You know

what ... go read that diversity thing that just came

out,” Id. 107: 2-4. While Plaintiff may have construed

these statements to be about race, rather than about

sexuality or gender, objectively these types of general

remarks about diversity, which were said to Plaintiff

on sporadic isolated occasions, are reasonably viewed

as not severe and within the “offhand comments

category of non-actionable discrimination.” Manatt,

339 F.3d at 798 (internal quotation marks omitted).

The same conclusion is true of the few alleged crew

member statements that are explicitly racial in nature.

Plaintiff testified that Slater told him something akin

to “Hey, Honkie.... Didn’t you see the note? You out of

work, my friend.” 2021 Armstrong Trans. 108:3-7. See

also 2024 Armstrong Trans. 254:17-24 (Armstrong

testifies that Slater told him “Hey, Honkie.... Looks like

your days are numbered.... All of us. All of us here.

45a

We’re done, man. It’s over.”).9 Plaintiff also alleges that

Sean Bard (“Bard”) told him “Yeah, you believe what

you want to, white boy” when discussing Bard’s belief

Armstrong would not be hired in the future. 2024

Armstrong Trans. 253:6-25. The Court would not

construe these comments to be so severe and pervasive

as to alter the conditions of Plaintiff ’s employment and

constitute a hostile work environment. These were two

isolated, offhand comments. Further, these comments,

placed in their proper context, are better seen as

attempts at racially insensitive humor. Plaintiff testified

that Slater is “a funny guy” that “was always laughing

and joking,” and that he had to ask Slater what he

meant “because [Slater’s] always joking and kidding

and stuff.” 2021 Armstrong Trans. 107:24-108:9. Plaintiff

further stated that Slater has a “[r]eal dry sense of

humor,” and when he made the honkie comment, he

then laughed and went off to do something else. 2024

Armstrong Trans. 254:15-25. Similarly, Plaintiff testified

that he and Bard “go way back,” that Bard “had a little

bit of a foul mouth,” that at the time he was making

the comments, Bard “was getting a laugh out of this

whole thing,” that while making his comments, Bard

“would laugh” and Plaintiff “would laugh back,” and

after his comments Bard laughed and got called away

to do something else. Id. 253:6-254:5. Given that both

Bard and Slater are white males, the racial comments

made to Plaintiff are best seen as offhand jokes

concerning future employment that are not severe or

pervasive enough to alter the conditions of Armstrong’s

employment. See Manatt, 339 F.3d at 798-98 (finding

The parties refer to Slater as Todd Sader in the 2024

Armstrong deposition and in ADF 50 and 56. The Court believes

this is the same person, simply with a difference in spelling his

last name.

46a

no hostile environment where co-workers used jokes

with the phrase “China man,” used a racial accent in

pronouncing “Lima,” and pulled their eyes back to

mock the appearance of Asians); Vasquez, 307 F.3d 884,

893 (9th Cir.2002) (finding no hostile environment

discrimination where the employee was told that he

had “a typical Hispanic macho attitude,” that he

should work in the field because “Hispanics do good in

the field,” and where he was yelled at in front of

others); Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1111

(9th Cir.2000) (finding no hostile work environment

where the supervisor referred to females as “castrating

bitches,” “Madonnas,” or “Regina” in front of plaintiff

on several occasions and directly called plaintiff “Medea”).

Additionally, Plaintiff takes great effort to chronicle

racial statements made by Higgins and Miller during

the course of hiring for the Bob Hearts pilot. For the

majority of these statements, Plaintiff was unaware

of the statements made by Miller and Higgins as

Plaintiff was not involved with the Bob Hearts pilot.

As Plaintiff was unaware of the statements, he was not

subjected to such statements, and they are not

applicable to Armstrong’s hostile work environment

theory. Plaintiff alleges that Silver and Steeples made

a few remarks about the Bob Hearts hiring process

that were racially discriminatory. Plaintiff alleges that

Silver told him “Carol has made it known that we need

to work off of the Warner Brothers new diversity hiring

program not only in front of the camera, but behind

the camera. In other words, our employees now have

to fit a certain demographic in order for us – in order

for me to hire you and to take you to Bob.” 2021

Armstrong Trans. 100:21-101:3. Plaintiff alleges that

Steeples told him that Carol put him in charge of

finding camera people for the Bob Hearts pilot and he

“start with African-American people, male or female,

47a

and then go from there.” Id. 102:11-13. Similar to the

comments discussed above, these comments were

offhand, isolated comments made to Plaintiff. Plaintiff

knew that he was not involved with the Bob Hearts

pilot because he was not available at the time it was

filmed. The comments, which only briefly touch on the

issue of race (if at all), were regarding a pilot that had

no connection to Plaintiff. While Plaintiff may have

been offended by the comments by interpreting them

to potentially apply to him in the future, they alone are

not sufficiently severe or pervasive enough to alter the

conditions of his employment.

4. Lorre, Cecil, and Green Statements

Putting aside pre-limitation statements, Plaintiff

claims that statements made by Lorre, Cecil, and

Green on May 2 and 3, 2019, which are squarely within

the statute of limitations, are sufficient to establish a

hostile work environment claim. Plaintiff alleges that

on May 2, 2019, Lorre told Armstrong, “We got more

stuff coming up. So this isn’t the end. You know,

something else, Army. You guys are going to be seeing

a lot more schvartzes in the next couple of years.” 2024

Armstrong Trans. 176:1-9. Plaintiff did not understand the term and thought it meant old people. In

response, Plaintiff alleges Lorre called over another

person to say, with a smile, “Army doesn’t know what

a schvartze is.” Id. 176:23-24. On May 3, 2019, Plaintiff

claims that Cecil told him something akin to “It’s all

true Brian. You know, the things you’re hearing about

this diversity thing is true.” 2021 Armstrong Trans.

115:9-12. Then, Cecil went on to tell him about the

hiring of African Americans, females, and all the other

things listed in the Commitment. See id. 116:3-11.

Similarly, on May 3, 2019, Plaintiff alleges that Green

told him something like, “It looks like we are an

48a

endangered species,” and “Kristy has been ordered to

follow this new diversity hiring program, which

includes, you know, we got to hire more Blacks ...

Women, [and] [o]f course LGBTQ.” Id. 117:21-118:12.

As previously stated, the Court is unsure whether

the statements made by Cecil and Green are

admissible, given Defendants’ objections. If Plaintiff

wishes for the Court to consider these statements, he

should explain how they are admissible at the hearing.

Regardless, even accounting for these statements, the

Court would not find that they are sufficient to create

a hostile work environment. These comments do

concern race to some degree, but also touch on other

diversity factors such as gender and sexuality; the

comments are not solely racial in nature and are not

severe. Importantly, the statements were made as

offhand remarks to Plaintiff at the wrap party for Big

Bang on the last day of his employment while everyone

had been drinking. Essentially, these comments were

made when Plaintiff quite literally only had a few

hours remaining of employment (if any). It is unlikely

that these comments could have had any effect on

Plaintiff ’s work performance, which at that time was

essentially finished. Thus, these isolated, offhand

comments made in the last embers of Plaintiff ’s

employment do not alter the terms of Plaintiff ’s

employment.

Unlike the Cecil and Green comments, the alleged

Lorre comments to Plaintiff are a closer call. Plaintiff

alleges that on the second-to-last day of his employment, Lorre used the term “schvartze” multiple times

while in conversation with him. The word “schvartze”

is defined as “a term used by some Jewish people to

refer to a Black person.” Schvartze, Dictionary.com,

https://www.dictionary.com/browse/schvartze (2024).

49a

The word is “usually disparaging and offensive.” Id.

Lorre denies having ever said “schvartze” to Plaintiff

and believes it is a hateful word and could be

characterized as a racial slur. See 2024 Chuck Lorre

Deposition Transcript 55:22-56:6. At this point, Plaintiff

has established a genuine dispute as to whether Lorre

used the word “schvartze” multiple times on May 2,

2019. However, even if Lorre made the comments as

alleged by Plaintiff, the Court is not inclined to find the

remarks so severe and pervasive as to alter the

conditions of his employment. It is undisputed that

Plaintiff is white, not black, and therefore is not part

of the racial group targeted by the term “schvartze.”

This is distinguishable from a case in which a

supervisor directs a racial slur at an employee who

belongs to the targeted racial group. However, Plaintiff

being white does not absolve the potential racial

hostility that may come from using a derogatory term

aimed at another racial group. “If racial animus

motivates a harasser to make provocative comments

in the presence of an individual in order to anger and

harass him, such comments are highly relevant in

evaluating the creation of a hostile work environment,

regardless of the identity of the person to whom the

comments were superficially directed.” McGinest, 360

F.3d at 1117. Nevertheless, there is no evidence to

show that Lorre used the term “schvartze” in order to

anger or harass Armstrong; Armstrong did not know

what the word meant, and Lorre did not explain it to

Plaintiff.

Further, the alleged incident with Lorre is an

isolated event. Plaintiff does not allege any other uses

of derogatory racial terms used by Lorre that were

pervasive and polluted the working environment.

Compare Sanchez v. City of Santa Ana, 936 F.2d 1027,

1037 (9th Cir. 1990) (affirming directed verdict denying

50a

hostile work environment claim despite allegations

that the employer posted a racially offensive cartoon

and used racially offensive slurs) with Nichols v.

Azteca Rest. Enters., 256 F.3d 864, 872–73 (9th

Cir.2001) (finding a hostile work environment where a

male employee was called “faggot” and “fucking female

whore” by co-workers and supervisors at least once a

week and often several times per day). Moreover, the

comments made by Lorre were made on the second to

last day of Plaintiff ’s job. As Plaintiff would only work

one more day, the one-off remarks were unlikely to

severely impact his performance and alter the terms

and conditions of Plaintiff ’s employment. Given all of

these factors, at this time, the Court would find that

the comments (if made by made by Lorre), while

offense, are not sufficiently severe or pervasive to alter

the conditions of Plaintiff ’s employment so as to

constitute a hostile work environment. However,

Plaintiff may make further arguments as to this issue

at the hearing.

In sum, the Court would find that Plaintiff has not

alleged racially discriminatory conduct that is so

severe and pervasive so as to alter the conditions of his

employment. Plaintiff has not established the application of the continuing violation doctrine, meaning the

majority of offending remarks occurred outside of the

limitations period. Even if the Court were to consider

those pre-limitations remarks, the Court would not

find that any of them are so severe or pervasive as to

alter the conditions of Plaintiff ’s employment. The

Court would come to the same conclusion with respect

to the alleged comments by Cecil, Green, and Lorre

within the limitations period. These isolated, offhand

comments were made during the last days of Plaintiff’s

employment and were not so severe or pervasive as to

unreasonably interfere with his work environment.

51a

Thus, the Court is inclined to GRANT Defendants’

motion for summary judgment as to Plaintiff ’s hostile

work environment theory.

V. Evidentiary Objections

A. Plaintiff ’s Request for Evidentiary Rulings

Plaintiff filed a request for evidentiary rulings on

specified objections. See Docket No. 66 2. Defendants

filed a response. See Docket No. 68-3.

Objection No. 1: Overruled.

Objection No. 2: Overruled.

Objection No. 3: Overruled.

Objection No. 4: Overruled.

Objection No. 5: Overruled.

Objection No. 6: Overruled.

Objection No. 7: Overruled.

Objection No. 8: Overruled.

VI. Defendants’ Request for Evidentiary Rulings

Defendants filed a request for evidentiary rulings on

specified objections. See Docket No. 68-2.

Objection No. 1: The Court did not rely on this in

ruling on the MSJ.

Objection No. 2: The Court did not rely on this in

ruling on the MSJ.

Objection No. 3: The Court did not rely on this in

ruling on the MSJ.

Objection No. 4: The Court did not rely on this in

ruling on the MSJ.

52a

Objection No. 5: The Court did not rely on this in

ruling on the MSJ.

Objection No. 6: Overruled.

Objection No. 7: Overruled.

Objection No. 8: The Court did not rely on this in

ruling on the MSJ.

Objection No. 9: Overruled.

Objection No. 10: Overruled.

Objection No. 11: Overruled.

Objection No. 12: Overruled.

Objection No. 13: Overruled.

Objection No. 14: Overruled.

Objection No. 15: Overruled.

Objection No. 16: Overruled.

Objection No. 17: Overruled.

Objection No. 18: Overruled.

Objection No. 19: Overruled.

Objection No. 20: Overruled.

Objection No. 21: Overruled.

Objection No. 22: Overruled.

Objection No. 23: Overruled.

Objection No. 24: Overruled.

Objection No. 25: The Court reserves judgment on

this objection until after the hearing.

Objection No. 26: The Court reserves judgment on

this objection until after the hearing.

Objection No. 27: Overruled.

53a

Objection No. 28: Overruled.

Objection No. 29: Overruled.

Objection No. 30: Overruled.

Objection No. 31: Overruled.

Objection No. 32: Overruled.

Objection No. 33: Overruled.

Objection No. 34: Overruled.

Objection No. 35: Overruled.

Objection No. 36: Overruled.

Objection No. 37: Overruled.

VII. Conclusion

At the hearing, Plaintiff made a number of arguments with respect to the Court’s initial tentative

ruling. While the Court will not address every issue

raised, overall, the Court finds the majority of arguments made by Plaintiff to be unconvincing. The Court

will however address two arguments made by Plaintiff

concerning the Court’s interpretation of his first

theory as a failure to hire, and the Court using the

wrong standard when evaluating his retaliation theory.

Plaintiff attempts to now characterize his first cause

of action as arising under a discriminatory termination theory and not a failure to hire theory. Plaintiff ’s

argument is fruitless. It is undisputed that Plaintiff

worked for Defendants on a daily basis under the

terms of his collective bargaining agreement. The fact

that Plaintiff may have worked continuously over ten

years does not change that undisputed fact. Further,

as the Court discussed above, the statements made by

Roth and Lorre are not job offers for continual, future

employment binding Defendants. Plaintiff stated that

54a

the recent Supreme Court case Muldrow v. City of St.

Louis, Missouri, 144 S. Ct. 967, 974 (2024), stands for

the proposition that Plaintiff ’s employment over many

years with Defendant transforms this into a termination theory because employment “is not used in the

narrow contractual sense; it covers more than the

economic or tangible.” Id. (internal quotation marks

and citation omitted). In reviewing Muldrow, the case

does not stand for the proposition given by Plaintiff.

Muldrow concerned the Supreme Court’s review of

whether a heightened standard should apply to evaluating Title VII cases where alleged discrimination

alters the terms and conditions of employment. The

Supreme Court stated that there is not a heightened

requirement that the injury respecting employment

terms or conditions be significant. See id. at 977. The

phrase quoted by Plaintiff is referencing prior precedent establishing that Title VII prevents discriminatory

harm that is more than just economic or contractual,

but includes “the entire spectrum of disparate

treatment of men and women in employment.” Oncale

v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78

(1998) (internal quotation marks omitted). Muldrow

concerns the types of changes in employment that may

constitute discriminatory injury; it does not support

Plaintiff ’s attempt to redefine the express contractual

terms of his employment – governed herein by a

collective bargaining agreement – to say he was

terminated from, rather than not hired on, the Bob

Hearts series. The undisputed facts show that

Plaintiff ’s first theory is a failure to hire because he

was never terminated, just not re-hired on May 4,

2019, at the end of the completion of the Big Bang

television series, nor hired for the Bob Hearts series in

June of 2019.

55a

Plaintiff further claims that the Court did not

employ the correct legal standard when evaluating

Plaintiff’s retaliation theory with respect to allegations

made concerning Sidell. Plaintiff asserts that a retaliation claim is viable if the employer’s actions “would

have been materially adverse to a reasonable employee

or job applicant,” meaning “the employer’s actions

must be harmful to the point that they could well

dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). Plaintiff

alleges that under this standard, he raised a genuine

dispute with regard to his retaliation theory concerning the phone call he had with Sidell where he alleges

Sidell threated him not to speak of his complaint

regarding race discrimination, or pursue it in any

manner, and if he did, Plaintiff would never work for

the studio again. See ADF 105. Defendants stated that

there is no evidence in the record that any adverse

employment actions were taken following Sidell’s

alleged statement, and that Plaintiff did not cite this

case in his opposition, which did not give them a

chance to fully brief these issues.

Plaintiff stated that just the threat by Sidell is

enough for his retaliation theory, but there is also

circumstantial evidence that Plaintiff has been added

to the do-not-hire list for Defendants. The Court would

find that Plaintiff has not alleged that Plaintiff was

put on the do-not-hire list by Defendants. All Plaintiff

has averred is that “[i]n June 2019, Vice President

Sidell administered [Defendants’] ‘Do-Not-Hire List’

and Sidell was able to add people to the ‘Do-Not-HireList’ including for the reasons that ‘there’s been an

argument.’” Opp. at 21; see ADF 108. While Plaintiff

alleges Sidell may have had the power to add individuals, he does not go so far to actually allege he was

56a

added to the do-not-hire list, and nothing in the record

supports that contention. Rather, Sidell testified that

Plaintiff is eligible to work on Defendants’ productions,

and that if someone is placed on the do-no-hire list, a

letter is sent to that person and to the union. See ADF

108. While neither party pointed to any specific

employment that Plaintiff was denied after the alleged

threat by Sidell, the Court would note that Plaintiff

previously testified as to attempts he has purportedly

made to apply for positions with Defendants following

his June 2019 phone call with Sidell. See 2021

Armstrong Trans. 157:12-168:24. However, Plaintiff

has not been hired by Defendants.

Based on the foregoing discussion, the Court adopts

its tentative as its final and GRANTS Defendants’

motion for summary judgment with regard to Plaintiff’s

discrimination and hostile work environment theories.

However, the Court requests the parties submit

supplemental briefing with respect to Plaintiff ’s

retaliation theory concerning the alleged threat made

by Sidell to Plaintiff. Each party will submit their

briefs by May 21, 2024, with each brief limited to five

pages.

57a

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

————

Case No.

CV 23-3854-GW-JPRx

Date

June 6, 2024

Title

Brian Armstrong v. WB Studio

Enterprises, Inc., et al.

————

Present: The Honorable GEORGE H. WU,

UNITED STATES DISTRICT JUDGE

___Javier Gonzalez___

Deputy Clerk

___None Present___

Court Reporter / Recorder

__________________

Tape No.

Attorneys Present for Plaintiffs:

None Present

Attorneys Present for Defendants:

None Present

————

PROCEEDINGS: IN CHAMBERS - TENTATIVE

RULING ON DEFENDANTS’

MOTION

FOR

SUMMARY

JUDGMENT

OR,

THE

ALTERNATIVE,

PARTIAL

SUMMARY JUDGMENT [64]

58a

Attached hereto is the Court’s Tentative Ruling on

Defendants’ Motion [64] set for hearing on June 10,

2024 at 8:30 a.m.

Initials of Preparer JG____________

I. Background1

On May 6, 2024, the Court held a hearing

regarding Defendants WB Studio Enterprises, Inc.’s

and Warner Bros. Entertainment, Inc.’s (collectively

“Defendants” or “WB”) motion for summary judgment, or in the alternative, partial summary judgment. See Docket No. 74. At the hearing, Plaintiff

Brian Armstrong (“Plaintiff” or “Armstrong”) made a

number of arguments with respect to the Court’s

tentative opinion, including that the Court applied

the wrong standard when evaluating his retaliation

theory. On May 7, 2024, the Court issued an

amended ruling in which it granted Defendants’

motion for summary judgment with respect to Plaintiff’s discrimination and hostile work environment

theories under 42 U.S.C. § 1981, but requested

supplemental briefing from the parties regarding

Plaintiff’s retaliation theory concerning the alleged

threat made by then WB Vice President Silisha

Sidell. See Docket No. 75. Both parties submitted

supplemental briefs on May 21, 2024. See Plaintiff’s

Supplemental Brief (“Pl. Brief”), Docket No. 78;

Defendants’ Supplemental Brief (“Defs. Brief”),

Docket No. 79.

Prior to the May 6, 2024 hearing, the Court issued a

tentative ruling (see Docket No. 74), and after the hearing

issued an amended ruling (see Docket No. 75), both of which –

for purposes of discussion – are incorporated herein. The Court

presumes a familiarity with the facts as previously delineated in

the prior rulings which will not be repeated in their entirety

here, but which will be referenced.

59a

Plaintiff argues that for close to twenty years he

has had a continuity of employment with Defendants

working as a camera operator on Chuck Lorre shows,

such as Two and a Half Men and The Big Bang

Theory. See Pl. Brief at 5. During this employment,

Plaintiff alleges promises of further continued

employment were made in the Spring of 2019, prior

to his last day of work on May 3, 2019. See id. After

Plaintiff was not hired as a camera operator on the

show Bob Hearts Abishola (“Bob Hearts”), Plaintiff

claims that he engaged in protected activities. See id.

On June 10, 2019, Plaintiff sent an email to Kristy

Cecil stating that he heard very unfortunate rumors

about the new Bob Hearts series and asked to verify

whether he would be working on the series. See

Defendants’ Response to Statement of Genuine

Disputes (“SGD”), Docket No. 68-1 at 78; Docket No.

64-3 at 307. Additionally, in the email, Plaintiff

asked for Cecil to respond “ASAP” because he heard

the rumors were “illegally vicious.” Docket No. 64-3

at 307. Further, on June 11, 2019, Plaintiff replied to

Cecil by email stating that he was shocked and

confused by her message that he was not being hired

for Bob Hearts. See SGD 80; Docket No. 64-6 at 1112. Plaintiff told Cecil that he was available to work

on Bob Hearts and included his IMDB page,

requesting that Cecil send it to Patti Lee for

consideration. See id. Plaintiff stated he was not

certain why he was singled out for refusal to hire, but

rumors of diversity hiring are unconstitutional and a

civil rights issue. See id. Plaintiff further stated that

refusal to hire him would constitute a breaking of

Title VII of the Civil Rights Act and violate

McDonald v. Santa Fe Trail Transpo. Co. See id.

Following Plaintiff’s email to Cecil on June 11,

2019, Silisha Sidell (“Sidell”) and Keren Serrano

60a

(“Serrano”), WB labor relations executives, had a call

with Armstrong to discuss the camera operator

positions on the Bob Hearts series. See SGD 85. On

that call, Plaintiff alleges that he “told Sidell that

[he] believed [he] was discriminated against on the

basis of race and color.” Declaration of Brian

Armstrong (“Armstrong Decl.”), Docket No. 66-4 at

¶ 38. Additionally, Plaintiff told Sidell during the call

that he “was not selected for Bob Hearts Abishola

because [he is] white and Caucasian.” See id. ¶ 39. In

response, Plaintiff claims “Sidell threatened [him] by

stating, ‘not to speak of this or pursue it in any

manner’ and if [he] did [he] would never work for the

studio again.” See id. ¶ 40. Plaintiff alleges that for

the first time in close to twenty years, Defendants

stopped hiring him to positions on their television

shows despite Plaintiff consistently applying for jobs.

See id. ¶ 41; Pl. Brief at 7.

II.

Legal Standard

Summary Judgment

Summary judgment is proper when a movant

“shows that there is no genuine issue as to any

material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

To satisfy its burden at summary judgment, a moving

party without the burden of persuasion – which is the

case for Defendants here – “must either produce

evidence negating an essential element of the

nonmoving party’s claim or defense or show that the

nonmoving party does not have enough evidence of

an essential element to carry its ultimate burden of

persuasion at trial.” Nissan Fire & Marine Ins. Co.,

Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir.

2000); see also Devereaux v. Abbey, 263 F.3d 1070,

1076 (9th Cir. 2001) (en banc). The moving party may

61a

meet its initial burden by establishing the absence of

a genuine issue of material fact. See Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986).

Once the moving party meets its initial burden,

“the nonmoving party may not rely on the mere

allegations in the pleadings in order to preclude

summary judgment[, but instead] must set forth, by

affidavit or as otherwise provided in Rule 56, specific

facts showing that there is a genuine issue for trial.”

T.W. Elec. Serv., Inc., v. Pac. Elec. Contractors Ass’n,

809 F.2d 626, 630 (9th Cir. 1987) (internal citations

and quotation marks omitted). A dispute about a

material fact is genuine “if the evidence is such that a

reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). Conclusory, speculative

testimony in affidavits and moving papers is

insufficient to raise genuine issues of fact and defeat

summary judgment. See Nat’l Steel Corp. v. Golden

Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997). And

“[o]nly disputes over facts that might affect the

outcome of the suit . . . will properly preclude the

entry of summary judgment. Factual disputes that

are irrelevant or unnecessary will not be counted.”

Anderson, 477 U.S. at 248.

At the summary judgment stage, a court does not

make credibility determinations or weigh conflicting

evidence. See id. at 249. A court must draw all

inferences in a light most favorable to the nonmoving

party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). Summary judgment

should be entered against a party “who fails to make

a showing sufficient to establish the existence of an

element essential to that party’s case, and on which

that party will bear the burden of proof at trial.”

62a

Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d

794, 798-99 (9th Cir. 2010). A court must determine

whether a “a reasonable jury could return a verdict

for the nonmoving party.” Anderson, 477 U.S. at 248.

Section 1981

Section 1981 provides that “[a]ll persons within the

jurisdiction of the United States shall have the same

right in every State and Territory to make and

enforce contracts, to sue, be parties, give evidence,

and to the full and equal benefit of all laws and

proceedings for the security of persons and property

as is enjoyed by white citizens, and shall be subject to

like punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.” 42 U.S.C.

§ 1981(a). Under Section 1981, “the term ‘make and

enforce contracts’ includes the making, performance,

modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and

conditions of the contractual relationship.” 42 U.S.C.

§ 1981(b). “Section 1981 offers relief when racial

discrimination blocks the creation of a contractual

relationship, as well as when racial discrimination

impairs an existing contractual relationship, so long

as the plaintiff has or would have rights under the

existing or proposed contractual relationship.”

Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476

(2006). Further, to prevail on a Section 1981 claim, “a

plaintiff must initially plead and ultimately prove

that, but for race, it would not have suffered the loss

of a legally protected right.” Comcast Corp. v. Nat’l

Ass’n of Afr. Am.-Owned Media, 589 U.S. 327, 341

(2020).

63a

Retaliation

When analyzing Section 1981 claims, courts “apply

the same legal principles as those applicable in a

Title VII disparate treatment case.” Surrell v.

California Water Serv. Co., 518 F.3d 1097, 1103 (9th

Cir. 2008) (internal quotation marks omitted).

“Section 1981 prohibits racial discrimination in

taking retaliatory action.” Id. at 1107 (internal

quotation marks omitted). “To establish a prima facie

case of retaliation, a plaintiff must prove (1) she

engaged in a protected activity; (2) she suffered an

adverse employment action; and (3) there was a

causal connection between the two. Once established,

the burden shifts to the defendant to set forth a

legitimate, non-retaliatory reason for its actions; at

that point, the plaintiff must produce evidence to

show that the stated reasons were a pretext for

retaliation.” Id. In the failure to hire context, the

standard is similar. “[I]n the failure-to-hire context

involving a claim of retaliation, the plaintiff meets

her prima facie burden by showing that 1) she

engaged in protected activities, 2) the position was

eliminated as to her, and 3) the position was eliminated as to her because of the protected activities. At

this point, consistent with the McDonnell Douglas

analysis, the burden of production shifts to the

defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment decision.

If the defendant is successful, the plaintiff must then

prove by a preponderance of the evidence that the

proffered reasons are pretexts for retaliation or that a

discriminatory reason more likely motivated the

employer’s action.” Ruggles v. California Polytechnic

State Univ., 797 F.2d 782, 786 (9th Cir. 1986)

(internal quotation marks omitted).

64a

In describing Title VII anti-retaliation actions, the

Supreme Court has held Title VII’s anti-retaliation

provision “covers those (and only those) employer

actions that would have been materially adverse to a

reasonable employee or job applicant. In the present

context that means that the employer’s actions must

be harmful to the point that they could well dissuade

a reasonable worker from making or supporting a

charge of discrimination.” Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 57 (2006). “The antiretaliation provision protects an individual not from

all retaliation, but from retaliation that produces an

injury or harm.” Id. at 67. “We speak of material

adversity because we believe it is important to

separate significant from trivial harms. . .. normally

petty slights, minor annoyances, and simple lack of

good manners will not create such deterrence.” Id. at

68. “We refer to reactions of a reasonable employee

because we believe that the provision’s standard for

judging harm must be objective.” Id. Further, “[w]e

phrase the standard in general terms because the

significance of any given act of retaliation will often

depend upon the particular circumstances. Context

matters.” Id. at 69. “A schedule change in an

employee’s work schedule may make little difference

to many workers, but may matter enormously to a

young mother with school-age children. A supervisor’s refusal to invite an employee to lunch is

normally trivial, a nonactionable petty slight. But to

retaliate by excluding an employee from a weekly

training lunch that contributes significantly to the

employee’s professional advancement might well

deter a reasonable employee from complaining about

discrimination.” Id. (internal citation omitted). “[T]he

standard is tied to the challenged retaliatory act, not

the underlying conduct that forms the basis of the

65a

Title VII complaint. By focusing on the materiality of

the challenged action and the perspective of a

reasonable person in the plaintiff’s position, we

believe this standard will screen out trivial conduct

while effectively capturing those acts that are likely

to dissuade employees from complaining or assisting

in complaints about discrimination.” Id. at 69-70.

III.

Discussion

Plaintiff argues that he made a race discrimination

complaint to Cecil, which was escalated to Sidell. See

Pl. Brief at 8. Plaintiff claims that on the phone call

between him and Sidell, he complained about race

discrimination, and in return, Sidell threatened

Plaintiff that he would never work for Defendants

again if Plaintiff were to exercise his Section 1981

rights. See id. Under the circumstances of this case,

Plaintiff contends that this threat was objectively

likely to deter a reasonable worker or job applicant

from exercising his rights. See id. Further, Plaintiff

states that previously he has continuously worked for

Defendants, and was promised future work, but his

employment ceased close in time to when he made his

complaints. See id. In sum, Plaintiff states that

where an employee who works for an employer as

long as Plaintiff did, and receives the promises of

continued employment, engages in a protected activity to a manager who then escalates the complaint

to a Vice President who threatens the worker that he

will never work for the employer again, the threat on

its own and/or combined with the entire circumstances is sufficient for a retaliation claim. See id.

In response, Defendants claim that Plaintiff cannot

establish a prima facie case of retaliation because he

has not suffered any adverse action. See Defs. Brief

at 4. Defendants first argue that Plaintiff’s own

66a

testimony contradicts his claim that Sidell threatened him on a phone call in June 2019. See id. at 5.

Assuming that Sidell did threaten Plaintiff, Defendants contend that a threat alone cannot constitute an

adverse employment action under Title VII or Section

1981. See id. at 6. Further, Plaintiff has not identified

any specific productions that he has sought employment from Defendants, and testified that he spoke to

people that may or may not work for Defendants. See

id. Moreover, Defendants claim there is no evidence

that Sidell or anyone else associated with Defendants

has interfered with his ability to obtain employment.

See id. Defendants additionally make the point that a

reasonable worker would not have been discouraged

from making a complaint after Sidell’s alleged threat,

as evidenced by Plaintiff’s own course of action in

which he filed an EEOC charge three months later,

then a month after that filed the first of three

ensuing lawsuits. See id. at 7. Finally, Defendants

assert that Sidell’s call was to follow up on Plaintiff’s

emails to Cecil and posts online, which contained

broad complaints about various forms of discrimination, including sex, age, sexual orientation, and

religion. See id. at 8. Because the call was following

up on all of these complaints, Defendants claim that

Plaintiff cannot prove that “but for” his complaint

about race Sidell would not have made the alleged

threat. See id.

The Court is not persuaded by Defendants’ arguments concerning Plaintiff’s prior testimony or his

ability to prove that “but for” his race complaint

Sidell would not have made the alleged threat. Under

the facts as alleged by Plaintiff, he spoke on the

phone with Sidell about not being hired for Bob

Hearts. On that phone call, he states that he made a

complaint to Sidell that he was being discriminated

67a

against on the basis of race and color, and that he

was not selected as a camera operator on Bob Hearts

because he is white and Caucasian. In response to

these statements and complaints about race, Plaintiff

alleges that Sidell threatened him not to speak of this

or pursue it in any manner or he would never work

for Defendants again. Defendants are suspicious of

Plaintiff’s testimony regarding the threat given his

previous deposition testimony did not indicate Sidell

threatened him, and alluded to him and Sidell having

a very nice conversation.

However, Plaintiff’s prior testimony not including

or alluding to the alleged threat by Sidell does not

foreclose the possibility that it happened, and Defendants’ arguments are in fact attacks on the credibility of Plaintiff’s declaration, which is not appropriate to resolve at the summary judgment stage.

Further, while Defendants allege the call with Sidell

covered a number of complaints about discrimination,

under the facts as alleged by Plaintiff, Sidell’s threat

came in response to his complaints on the phone

about only race discrimination. This raises a triable

issue of fact as to whether Plaintiff’s complaints

about race were a “but for” cause of Sidell’s alleged

threat.

As to whether Plaintiff experienced a materially

adverse employment action, the Court finds it to be a

closer call. The parties disagree as to whether Sidell’s

alleged threat constitutes a materially adverse

employment action. Plaintiff cites the Supreme

Court’s broad articulation of the standard in which “a

plaintiff must show that a reasonable employee [or

job applicant] would have found the challenged action

materially adverse, which in this context means it

well might have dissuaded a reasonable worker [or

68a

job applicant] from making or supporting a charge of

discrimination.” White, 548 U.S. at 68 (internal

quotation marks and citation omitted). While the

Supreme Court notes that this does not include

“petty slights, minor annoyances, and simple lack of

good manners,” the standard is purposely broad to

allow particular circumstances and context to dictate

when an adverse action is material. Id.

In response, Defendants cite to a number of cases

following White that appear to have considerably

narrowed its holding by finding that a threat alone

cannot constitute an adverse employment action. See

Hellman v. Weisberg, 360 F. App’x 776, 779 (9th Cir.

2009) (“[T]he fact that Hellman was informed that

Judge Weisberg wanted to fire her and have her

criminally prosecuted is insufficient to support her

Title VII claims. It is undisputed that Hellman was

never fired or prosecuted, and the mere threat of

termination does not constitute an adverse

employment action.”); Hardage v. CBS Broad. Inc.,

427 F.3d 1177, 1189 (9th Cir.2005) (finding that

“snide remarks” about harassment claim and thinly

veiled threats were not enough to constitute

retaliation); Mendoza v. DeJoy, No. 3:21-cv-00991-HJLB, 2022 WL 18832234, at *11 (S.D. Cal. Dec. 20,

2022) (“Plaintiff asserts that Williams telling two

other employees that he would ‘fire’ Plaintiff constitutes an adverse employment action. But making

threats does not rise to the level of an adverse

employment action.”). See also Noonan v. Consol.

Shoe Co., Inc., 84 F.4th 566, 575 (4th Cir. 2023)

(“Considering the context of Petrick’s one-off statement to Noonan, no reasonable juror would conclude

that the threat was a significant harm that would

have dissuaded a reasonable worker from making a

charge of discrimination. There were no special circ-

69a

umstances such as a unique interpersonal relationship between the supervisor and employee for us to

determine that this unrealized threat of termination

was sufficiently adverse.”) (cleaned up).

Under the terms of the Supreme Court’s generalized statement, Plaintiff argues that a reasonable

job-applicant/employee would be dissuaded from

making a complaint about race discrimination in the

future if threated by a supervisor that continuing to

pursue the complaint would result in never working

for the employer again. However, Defendants point to

seemingly more extreme situations in which threats

of termination (and even criminal prosecution),

though ultimately unrealized, were found to not be

material enough to qualify as an adverse employment

action. Further research into the standard only

muddies the waters. The Ninth Circuit has found

“the following conduct may constitute an adverse

employment action: [1] forcing an employee to use a

grievance procedure to get overtime work assignments that were routinely awarded to others,

Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d

840, 848 (9th Cir. 2004); [2] assigning an employee

more hazardous work than her co-workers, Davis v.

Team Elec. Co., 520 F.3d 1080, 1089-90 (9th Cir.

2008); [3] transferring away an employee’s job duties

and assigning undeserved poor performance ratings,

Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.

1987); [4] resigning as a Ph.D. candidate’s dissertation chair, Emeldi v. Univ. of Oregon, 673 F.3d 1218,

1225 (9th Cir. 2012); and [5] intentionally assigning a

teacher a subject that the teacher disliked, Campbell

v. Hawaii Dep’t of Educ., 892 F.3d 1005, 1022 (9th

Cir. 2018).” MacIntyre v. Carroll Coll., 48 F.4th 950,

955 (9th Cir. 2022). Additionally, the Ninth Circuit

has also held that “[t]he nonrenewal of an employ-

70a

ment contract is comparably likely to deter a reasonable employee from reporting discrimination. Indeed,

common sense suggests that an employee may be

dissuaded from alerting the company of discrimination if his or her contract may not be renewed as a

result of it.” Id. In coming to this conclusion, the

Ninth Circuit reiterated that “employment actions

can be adverse for retaliation claims even if they

relate to purely discretionary decisions. For example,

the decisions to hire a new employee, terminate an

at-will employee, or promote someone are discretionary. But we have long held that any of those actions

may be adverse actions if an employer takes them for

discriminatory reasons or in retaliation for reporting

discrimination.” Id.

At this time, given the facts of the case, the Court

is slightly inclined to find that Sidell’s threat

constitutes a materially adverse employment action.

Given the wide-range of interpretations courts have

come to regarding what constitutes a materially adverse employment action, the Court finds it useful to

return to the baseline principle laid out by the

Supreme Court in which an action is materially

adverse if “it well might have dissuaded a reasonable

worker [or job-applicant] from making or supporting

a charge of discrimination.” White, 548 U.S. at 68

(internal quotation marks and citation omitted). As

the parties have previously discussed, jobs in this

industry usually are based on relationship and wordof-mouth hiring. Plaintiff typically did not submit a

job application for his previous positions, but was

hired by people who knew him and had worked with

him in the past. Through that informal process,

Plaintiff had worked on a daily contract with Defendants that had been renewed each season for over a

decade. Further, the parties appear to agree that at

71a

the time Sidell allegedly made the threat, she was

one of the administrators of Defendants’ do-not-hire

list. While Plaintiff has not produced any evidence to

show that he was ever placed on the do-not-hire list,

the existence of the list, as well as Sidell’s administering of it, adds greater weight to the severity and

materiality of her alleged threat. The alleged threat

made by Sidell could fairly be characterized as a

threat to fail-to-hire Plaintiff or fail-to-renew

Plaintiff’s contract. The Ninth Circuit has found

failure to hire and failure to renew an employment

contract both can constitute an adverse employment

action if done in retaliation for reporting discrimination. See MacIntyre, 48 F.4th at 955.

Defendants’ essential point appears to be that the

threat to do these actions – rather than actually

doing these actions – is distinguishable and not

actionable. The Court acknowledges the point and

supporting case law cited by Defendants on this

issue, but is not sure the distinction is persuasive in

this context. Part of the reason why threats were not

found to be materially adverse in Defendants’ cases

was because the threat was never consummated. See

Hellman, 360 F. App’x 776, 779 (9th Cir. 2009) (“It is

undisputed that Hellman was never fired or prosecuted, and the mere threat of termination does not

constitute an adverse employment action.”). Here, it

remains unclear whether Sidell’s alleged threat was

carried out, given Plaintiff did continue to pursue his

complaint regarding race discrimination and has

subsequently not worked for Defendants. Given the

varying interpretations and approaches courts have

taken with respect to this issue, the parties are

encouraged to further argue this issue at the hearing.

But at this time, the Court would have a slight

inclination to find that Sidell’s alleged threat could

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dissuade a reasonable employee/job-applicant from

making a charge of discrimination, and thus qualifies

as a materially adverse employment action. If the

Court finds that Plaintiff has established a prima

facie case of retaliation based on Sidell’s alleged

threat, Defendants will have the opportunity to

provide legitimate, non-retaliatory reasons for its actions. If Defendant wishes to offer such explanation,

they may do so at the hearing, with Plaintiff permitted to offer evidence and explain why such reasons

are pretextual.

In addition to Sidell’s alleged threat, Plaintiff

appears to argue that Defendants ceasing to employ

him after a continued history and promises of future

employment, in close proximity to his race discrimenation complaint, also qualifies as retaliation. “The

antiretaliation provision protects an individual not

from all retaliation, but from retaliation that produces an injury or harm.” White, 548 U.S. at 67.

Under such an argument, Plaintiff would need to

sufficiently establish the injury or harm, as well as

causation, related to Defendants ceasing to employ

him. Plaintiff alleges that he has consistently applied

to shows with Defendants, but has not been hired.

See Pl. Brief at 7. Defendants respond that Plaintiff

did not identify any specific production that he

applied to, and testified that he spoke to individuals

that he wasn’t sure were working on Defendants’

productions. See Defs. Brief at 6. If Plaintiff wishes to

establish a prima facie case of retaliation based on

Defendants’ failure to hire him to positions that he

has applied to, Plaintiff will have to provide

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