Petition for Writ of Certiorari — Shannon Cross, Petitioner v. Central Contra Costa Transit Authority

Supreme Court briefJul 20, 2026

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NO. 26-___

IN THE

SHANNON CROSS

Petitioner,

CENTRAL CONTRA COSTA TRANSIT AUTHORITY

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

JEREMY L. FRIEDMAN

Counsel of Record

2801 Sylhowe Road

Oakland, CA 94602

jlfried@comcast.net

(510) 530-9060

July 2026

Alan J. Reinach

Jonathon Cherne

CHURCH STATE COUNCIL

2686 Townsgate Road

Westlake Village, CA 91361

(805) 413-7398

Counsel for Petitioner

QUESTION PRESENTED

Whether the judicially-imposed application of

the McDonnell Douglas burden-shifting framework at

summary judgment in a Title VII religious

discrimination case — where the employer pressured

the plaintiff to abandon her religious practice of

wearing a hijab, terminated her based on a purported

reason contradicted by objective video evidence, and

imposed uniquely harsh discipline not given to any

similarly situated employee — led the courts below to

credit the employer’s disputed account, in a manner

incompatible with Rule 56 and this Court's decisions.

PARTIES TO THE PROCEEDINGS AND

CORPORATE DISCLOSURE STATEMENT

Petitioner Shannon Cross was plaintiff in the

district court and plaintiff-appellant in the court of

appeals. Respondent Central Contra Costa Transit

Authority was defendant in the district court and

defendant-appellee in the court of appeals.

No corporate disclosure statement is required

under this Court’s Rule 29.6.

iii

RELATED CASES

This case arises from the following proceedings

in the United States District Court for the Northern

District of California and the United States Court of

Appeals for the Ninth Circuit:

Cross v. Central Contra Costa Transit Authority,

No. 4:21-cv-01312-JST (N.D. Cal.) (judgment entered

Sept. 3, 2024)

Cross v. Central Contra Costa Transit Authority,

No. 24-6068 (9th Cir.) (memorandum disposition filed

Jan. 13, 2026; petition for rehearing and rehearing en

banc denied Feb. 20, 2026)

There are no other proceedings in state or

federal trial or appellate courts, or in this Court,

directly related to this case within the meaning of this

Court’s Rule 14.1(b)(iii).

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

PARTIES

THE

PROCEEDINGS

AND

CORPORATE DISCLOSURE STATEMENT . . . . . ii

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDIX . . . . . . . . . . . . . . . . . . . . . vi

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

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTE AND RULE INVOLVED . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3

Statement of Facts . . . . . . . . . . . . . . . . . . . . . 3

Procedural History . . . . . . . . . . . . . . . . . . . . 11

REASONS FOR GRANTING THE PETITION . . . 13

The Petition Should Be Granted Because This

Case Is the Correct Vehicle for the Court to

Address the Resounding Chorus of Jurists

Calling for a Reconsideration of McDonnell

Douglas at Summary Judgment . . . . . . . . . 15

II.

The Petition Should Be Granted to Restore Rule

56 Standards to Their Proper Place in

Employment Discrimination Cases . . . . . . . 19

III.

The Petition Should Be Granted to Harmonize

Summary Judgment Practice with Bostock v.

Clayton County . . . . . . . . . . . . . . . . . . . . . . . 23

IV.

The Petition Should Be Granted Because the

Result in This Religious Discrimination Case

Cannot Be Reconciled with EEOC v.

Abercrombie & Fitch Stores, Inc. . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . 30

TABLE OF APPENDIX

APPENDIX A – OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH

CIRCUIT, FILED JANUARY 13, 2026 . . . . 1a

APPENDIX B – ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT OF

THE UNI TED STATES COURT OF APPEALS,

FILED SEPTEMBER 3, 2024 . . . . . . . . . . . 9a

APPENDIX C – ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH

CIRCUIT, F ILED FEBRUARY 20, 2026 . 28a

APPENDIX D – DECLARATION OF SHANNON

CROSS IN THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

CALIFORNIA, FILED JUNE 14, 2024 . . 30a

APPENDIX E – DECLARATION OF DAVID

BRINTON IN THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF CALIFORNIA, FILED JUNE 14,

2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45a

vii

TABLE OF AUTHORITIES

Cases

Ames v. Ohio Dep’t of Youth Servs.,

605 U.S. 303 (2025) . . . . . . . . . . . . . . . . 16, 19

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . 20

Awe v. Harris Health Sys.,

163 F.4th 969 (5th Cir. 2026) 15, 16, 18, 19, 22

Bostock v. Clayton County,

590 U.S. 644 (2020) . . . . . . . . . . . . . 14, 23-26

Brady v. Off. of Sergeant at Arms,

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

Coleman v. Donahoe,

667 F.3d 835 (7th Cir. 2012) . . . . . . . . . . . . 15

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) . . . 21

EEOC v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015) . . . . . . . . . . . . . 14, 26, 29

Hittle v. City of Stockton, 145 S. Ct. 759 (2025) 16, 19

Hollis v. Morgan State Univ.,

153 F.4th 369 (4th Cir. 2025) . . . . . . . . . . . 16

Nall v. BNSF Ry. Co.,

917 F.3d 335 (5th Cir. 2019) . . . . . . . . . . . . 18

viii

Opuku-Boateng v. State of Cal.,

95 F.3d 1461 (9th Cir. 1996) . . . . . . . . . . . . 28

Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . 20

Sambrano v. United Airlines, Inc., 2022 U.S.

App. LEXIS 4347 (5th Cir. Feb. 17, 2022) . . 28

Trans World Airlines, Inc. v. Thurston,

469 U.S. 111 (1985) . . . . . . . . . . . . . . . . . . . 19

Tynes v. Fla. Dep't of Juv. Just.,

88 F.4th 939 (11th Cir. 2023) . . . . . . . . . . . 15

Vasquez v. County of Los Angeles,

349 F.3d 634 (9th Cir. 2003) . . . . . . . . . . . . 22

Walton v. Powell, 821 F.3d 1204 (10th Cir. 2016) . 15

Wells v. Colo. Dep’t of Transp.,

325 F.3d 1205 (10th Cir. 2003) . . . . . . . . . . 19

Statutes

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

Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-2 . . . . . . . . . . . . . . . . . 2, 25

Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-3 . . . . . . . . . . . . . . . . . . . . 2

Cal. Gov’t Code § 12923(e) . . . . . . . . . . . . . . . . . . . 22

Rules

Federal Rules of Civil Procedure, Rule 56 . . . . . . i, 2,

11-15, 19, 20, 22-24

Regulations

Cal. Code Regs. tit. 2, § 11062 . . . . . . . . . . . . . . . . 28

Other Authorities

EEOC Compliance Manual, Section 12 . . . . . . . . . 27

Timothy M. Tymkovich, The Problem with Pretext, 85

Denv. U. L. Rev. 503 (2008) . . . . . . . . . . . . . . . . . . 22

Noelle N. Wyman, Because of Bostock,

119 Mich. L. Rev. Online 61 (2021)

. . . . . . 23

Deborah A. Widiss, Proving Discrimination by the

Text, 106 Minn. L. Rev. 353 (2021) . . . . . . . 23

PETITION FOR A WRIT OF CERTIORARI

Shannon Cross respectfully petitions this Court

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit in

this case.

OPINIONS BELOW

The memorandum disposition of the United

States Court of Appeals for the Ninth Circuit (App.

1a-15a) is unpublished but is available at 2026 U.S.

App. LEXIS 788. The order of the Ninth Circuit

denying rehearing and rehearing en banc (App.

28a-29a) is also unpublished.

The opinion of the United States District Court

for the Northern District of California (App. 9a-27a) is

unreported but is available at 2024 U.S. Dist. LEXIS

252435.

JURISDICTION

The Ninth Circuit entered its memorandum

disposition on January 13, 2026, and denied rehearing

and rehearing en banc on February 20, 2026. On May

15, 2026, Justice Kagan extended the time to file a

petition for a writ of certiorari to July 20, 2026. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTE AND RULE INVOLVED

42 U.S.C. § 2000e-2(a)(1) provides:

It shall be an unlawful employment

practice for an employer to fail or refuse

to hire or to discharge any individual, or

otherwise to discriminate against any

individual with respect to his

compensation, terms, conditions, or

privileges of employment, because of such

individual's race, color, religion, sex, or

national origin.

42 U.S.C. § 2000e-3(a) provides:

It shall be an unlawful employment

practice for an employer to discriminate

against any of his employees because he

has opposed any practice made an

unlawful employment practice by this

subchapter, or because he has made a

charge, testified, assisted, or participated

in any manner in an investigation,

proceeding, or hearing under this

subchapter.

Federal Rule of Civil Procedure 56(a) provides:

The court shall grant summary judgment

if the movant shows that there is no

genuine dispute as to any material fact

and the movant is entitled to judgment as

a matter of law.

STATEMENT OF THE CASE

Statement of Facts

1. Shannon Cross is a practicing Muslim whose

faith required her to wear a hijab, a practice that

immediately placed her at odds with her employer’s

unwritten and selectively enforced policies from the

outset of her employment. Cross was hired as a bus

operator by the Central Contra Costa Transit

Authority — known as County Connection — a public

transit agency serving in and around Contra Costa

County, California. During training for her new job,

Cross learned that County Connection barred women

from wearing head scarves while on duty. Another

trainee, Terrice Hampton, was told she could not wear

her head covering and was sent home to remove it. The

instructor made clear that employees could be

terminated for wearing head scarves. Cross was

intimidated and fearful. The employee handbook

contained no policy on religious accommodation and no

training on religious harassment. To avoid conflict

during her probationary period, Cross complied with

her religious practice by wearing a wig to cover her

natural hair. [Cross Decl. ¶¶1-2, 4-10 (App. 31a-32a).]

2. When Cross requested to wear her hijab after

completing probation, her supervisors responded with

repeated objections, and the employer began enforcing

a no-hat policy that had not previously been applied to

other drivers. Cross passed probation with high marks.

Her performance was rated “outstanding,” and she was

described as “exceptional behind the wheel.” She then

asked supervisor Preston Ennis whether she could

wear her hijab. Ennis said he did not know and never

followed up. She asked HR representative Kristina

Martinez, who also did not know and had no policy to

consult. Martinez gave Cross a generic accommodation

form that made no mention of religion. Cross

eventually received written permission to wear her

hijab, but no one informed her supervisors, no policy

was posted, and no training was provided. [Cross Decl.

¶¶11-20 (App. 32a-34a).]

About a week after receiving permission,

supervisor Sophia Morris chased Cross down after she

clocked out and told her she could not wear “that” —

referring to her hijab. When Cross said she had

permission, Morris changed her story and claimed the

hijab was the wrong color. It was not. The hijab was

maroon and matched Cross’s uniform. Morris said

plainly she wanted Cross to stop wearing her hijab. On

another occasion, supervisor Aline Carroll — a close

friend of Morris — gave Cross a look of disgust and told

her she could not wear “that thing” on her head. [Cross

Decl. ¶¶21-26, 41 (App. 34a-36a, 38a).]

3. The employer’s response to Cross’s

accommodation request included public humiliation, a

refusal to investigate her complaints, and sustained

pressure to abandon her religious practice. Up until

Cross’s request, the no-hat policy had gone entirely

unenforced. Bus operators wore hats of all kinds daily.

After Cross received permission to wear her hijab,

Morris announced to employees in the breakroom that

the company would begin enforcing the policy — and

made clear that Cross was the reason. A coworker

responded by mocking Cross directly, stating “now I’m

going to wear my hat for religious purposes.” Morris

added an insulting comment of her own and did

nothing to stop the mockery. [Cross Decl. ¶¶30-33

(App. 36a-37a).]

Cross reported these incidents to Martinez, who

assured her she would remind Morris of the

accommodation but failed to initiate any investigation

as company policy required. After Carroll told Cross

she could not wear “that thing,” Cross reported the

incident to HR director Lisa Rettig. Rettig dismissed it

by saying “some people are stupid” and took no action.

[Cross Decl. ¶¶34-35, 42, 46-47 (App. 37a-39a).]

The written permission Cross received did not

eliminate the conflict between her religious practice

and her job. Her supervisors — the people with direct

authority over her employment — told Cross she could

not wear the hijab. HR refused to investigate or

intervene. Cross was left to conclude that despite the

memo, the employer really wanted her to remove her

hijab. As she testified: “I understood clearly that if I

did not remove it, I was likely to face consequences.”

Both supervisors held authority over her job, and she

perceived their conduct as “threatening me with

discipline if I continued to wear it. I felt they were

pressuring me to remove my Hijab and conform to

what everyone else was doing.” [Cross Decl. ¶¶44-45

(App. 38a-39a).]

Cross experienced severe emotional distress as

a result. The first incident with Morris “completely

changed everything. I no longer felt safe going to work,

and I knew I did not fit in.” She “experienced anxiety

every day I had to go to work. I felt my face flushed

and hot, a tightness in my chest, and actual terror. I

was afraid of what might happen next, of being

physically attacked.” After reporting to HR to no effect,

she was “convinced the company would not protect me

from further harassment” and “continued to go to work

every day with anxiety and fear about what would

happen next.” After Carroll’s comment, Cross felt “very

angry” and “much shame.” She knew Morris and

Carroll were close friends, and “things were getting

worse for me, with these two supervisors harassing me

on account of my hijab.” [Cross Decl. ¶¶25-28, 40, 43

(App. 35a-36a, 38a).]

4. About six weeks after Cross’s complaints, she

was terminated following a bus-bicycle collision. The

on-board video and expert analysis showed that the

bicyclist, not Cross, caused the incident. The bicyclist

was stopped at the corner with his foot on the curb as

Cross approached. He did not signal an intention to

enter the lane. By the time he entered, Cross was

already in the lane. As she passed, the bicyclist fell into

the side of the bus near the back end. Bicycle safety

expert David Brinton reviewed the video and concluded

that the bicyclist caused the collision by entering the

lane unsafely and without signaling, in violation of

California Vehicle Code § 22106. The bicyclist broke his

watch. [Cross Decl. ¶¶48-49, 51 (App. 39a-40a);

Brinton Decl. ¶5a-d (App. 47a-48a); ECF 73, Exh. C1

(video).]

5. The employer made the decision to terminate

Cross before she returned to the yard, based on a video

review by management in which the same supervisor

who had harassed Cross about wearing her hijab

participated. Cross called in the accident immediately,

as she had been trained to do. She waited at the scene,

spoke with police, and was instructed to complete a

final loop and return the bus. She drove another shift

and did not return to the yard until 7:00 p.m. By then,

management had already pulled the video and

concluded — contrary to what the video showed — that

Cross was at fault. An email from supervisor Miguel

Duenas to the General Manager shows the employer

had already formed an intent to terminate Cross by

that afternoon. Supervisor Carroll, who had called

Cross’s hijab “that thing” and told Cross she could not

wear it six weeks earlier, participated in the video

review. When Cross arrived, Carroll called her into her

office and issued the notice of termination. Carroll had

a pleased and smug look on her face. Cross was not

questioned about what happened. She was not

permitted to view the video. [Cross Decl. ¶¶49, 52-55,

61 (App. 40a-42a); ECF No. 80-2 at 272-273.]

County Connection’s own protocol, described by

its General Manager, called for placing drivers on paid

leave after collisions to allow them to overcome the

emotional impact. The employer departed from this

protocol for Cross. She was placed on suspension

immediately. Even the union president knew the

outcome was predetermined: when Cross asked

whether she should come to her Skelly hearing in

uniform in case she was returned to work, the union

president said no. Cross was terminated before County

Connection had formally determined the collision was

“preventable” — the determination came after the

termination. [Cross Decl. ¶¶55-56, 60-61 (App. 41a42a); ECF No. 77 at 6-7.]

6. Cross’s termination was a stark departure

from County Connection’s disciplinary practices and its

own policies. This was Cross’s first and only collision.

Her driving record was clean, with no accidents or

incidents. Yet she was fired immediately, without the

progressive discipline that company policy required —

warnings and retraining for a first collision within a

twelve-month period. The union grievance identified

multiple contract violations by County Connection,

including the employer’s failure to issue a required

Pending Disciplinary Action Letter. Cross was the only

non-probationary driver ever fired for a collision,

despite hundreds of preventable collisions by other bus

drivers over the relevant period. [Cross Decl. ¶¶11-12,

59, 64-65 (App. 32a-33a, 41a-43a); ECF 88-2 at 275287; ECF 80-6 at 35:4-38:4, 58:13-65:1, 123:4-126:8;

ECF 81:9-17; ECF 80-3 at 1, 2-21.]

7. After deciding to terminate Cross, County

Connection searched for additional violations to justify

its decision. The employer reviewed countless hours of

video in search of misconduct — a practice that

violated the union agreement, which expressly

prohibited reviewing electronic media “solely for the

purpose of looking for employee misconduct.” It cited a

police report to support the termination, but the

termination letter was written before the employer

could have seen any such report: the letter referenced

a police report “issued” on June 19, 2019, while the

termination letter itself was dated June 13, 2019. The

employer also cited alleged rolling stops, but rolling

through stop signs at that location was a common

occurrence for which no other driver had ever been

disciplined. Records show several other drivers were

seen rolling through stop signs on video, and none was

terminated. Moreover, the employer reviewed video

footage outside the permissible time window under the

union agreement — more than two hours before and

after the collision — and did so after Cross had already

been terminated. [Cross Decl. ¶¶63, 66-68 (App. 42a43a); ECF 56-1 at 144; ECF 80-2 at 264.]

8. Other drivers who engaged in far more serious

misconduct received last-chance agreements and kept

their jobs. Cross was denied one. E.M. hit a pole, failed

to report it, left the scene, and committed multiple stop

sign violations. S.S. hit a truck, inspected the damage,

left the scene without reporting it, and failed to stop at

multiple stop signs. Y.D. ran multiple stop signs, went

off route, ate on the job, and was dishonest. W.H. was

caught on video urinating in a bottle. Each of these

drivers received a last-chance agreement. Notably, one

driver whose notice of intent to terminate cited both a

collision and multiple stop sign violations received a

last-chance letter that omitted any mention of stop

signs — the very infraction the employer cited against

Cross to justify her termination. Cross, whose only

infraction was a single collision caused by the

bicyclist’s unsafe entry into her lane, was denied a

last-chance agreement. [ECF 80-1, ¶¶2b, 2c, 3-21; ECF

74, at 34-39, 40-43, 44-49, 122-125, Exh. C4 (video).]

9. The employer’s treatment of Ronnette Brown,

a non-Muslim driver, provides further evidence of

disparate treatment and retaliatory intent. Brown ran

over a teenage bicyclist and put her in the hospital.

Expert analysis of the video shows Brown entered an

intersection on a yellow light to make a right turn,

failed to maintain proper distance from the curb,

exceeded appropriate speed while turning, and looked

left rather than checking her right mirror — where the

teenager was in the crosswalk. The teenage bicyclist

stopped immediately; the trailing bus collided upon

her. County Connection initially found Brown’s

accident preventable, as it did Cross’s, but gave Brown

only a suspension and retraining — and later removed

even that discipline by reclassifying the incident as

non-preventable. Brown had been involved in sixteen

occurrences in the previous five years but ultimately

received no discipline. [Cross Decl. ¶¶70-71 (App. 44a);

Brinton Decl. ¶¶6-8 (App. 48a-50a); ECF 56-1 at 144,

148; ECF 79, ¶¶8, 9; ECF 80-1, ¶18; ECF 80-3 at 2-20,

121.]

10. The employer’s denial of a last-chance

agreement to Cross fits a pattern of retaliation against

employees who complain of discrimination. Of all

employees noticed for termination, only three were

denied a last-chance agreement. One was Cross, who

had complained to management about religious

harassment. Another was Keith Polee, who also had

complained about harassment on the job. Polee sued,

and County Connection paid him $250,000 in

settlement plus a judicially-awarded fee exceeding that

amount. [ECF 77, ¶¶2-6; ECF 80-6 at 123:4-126:10.]

Procedural History

Cross filed suit in federal district court alleging

religious discrimination, retaliation, and harassment

under Title VII of the Civil Rights Act of 1964 and

California's Fair Employment and Housing Act.

County Connection moved for summary judgment,

invoking the McDonnell Douglas burden-shifting

framework. Cross opposed, arguing that a convincing

mosaic of direct and circumstantial evidence —

including her own declaration, expert declarations

from David Brinton and Gregory Hanson, hundreds of

pages of the employer’s personnel and disciplinary

records, comparator data, and video evidence —

precluded judgment as a matter of law under Rule 56.

Cross did not request application of the McDonnell

Douglas framework.

The district court granted summary judgment

without oral argument. App. 9a-27a. Applying

McDonnell Douglas, the court held that Cross failed to

establish a prima facie case of discrimination because

she had not identified a similarly situated employee

outside her protected class. The court compared Cross

solely to Ronnette Brown and found Brown not

similarly situated. The court did not address the

hundreds of other drivers who had preventable

collisions and were not terminated. The court also held

that Cross failed to show pretext, crediting the

employer’s stated reasons without addressing the video

evidence, the expert analysis, or the evidence that the

employer’s reasons were generated after the

termination decision.

The Ninth Circuit affirmed in an unpublished

memorandum disposition, also without oral argument.

App. 1a-15a. The panel issued its decision four days

after submission. The panel’s opinion recited as fact

the employer’s disputed assertions: that Cross was

“completely at fault” for the collision, that she had

“repeatedly violated multiple CCCTA policies and

California Vehicle Code violations,” and that Brown

was not similarly situated. App. 2a, 5a-6a. The panel

did not address the video evidence or the expert

analysis showing the bicyclist caused the collision. It

did not address the evidence that Cross was the only

non-probationary driver ever fired for a collision, or

that drivers with far more serious misconduct received

last-chance agreements. The panel affirmed the

dismissal of the harassment claim, treating the

supervisors’ statements and the breakroom mockery as

three isolated incidents that were not severe or

pervasive. The panel then declined to consider that

same evidence as proof of discriminatory motive in the

discrimination and retaliation analysis.

Cross sought panel rehearing and rehearing en

banc, arguing that the court’s application of McDonnell

Douglas led to an opinion that ignored material facts

and improperly weighed disputed evidence in favor of

the employer, contrary to Rule 56 and this Court’s

precedent. The petition was denied without opinion.

App. 28a-29a.

Cross never received a jury trial. She never

received oral argument in the district court. She never

received oral argument in the Ninth Circuit.

REASONS FOR GRANTING THE PETITION

The question presented in this case is whether

the McDonnell Douglas burden-shifting framework, as

applied at summary judgment, can be used to credit an

employer’s disputed account of the facts over evidence

that would permit a jury to find discrimination. The

courts below answered yes. They applied McDonnell

Douglas to treat the employer’s assertions as

established fact — that Cross was completely at fault

for the collision, that she repeatedly drove unsafely,

that no similarly situated employee was treated more

favorably — while disregarding the evidence Cross

presented: video and expert analysis showing the

bicyclist caused the collision, testimony that

supervisors pressured her to abandon her hijab, and

proof that none of the other drivers involved in

preventable collisions were fired. The result is

incompatible with Rule 56 and this Court's decisions.

The McDonnell Douglas framework was

designed to help plaintiffs prove discrimination when

direct evidence is unavailable. As applied in this case,

it did the opposite. It required Cross to disprove the

employer’s stated reasons and obscured the full body of

evidence that would allow a reasonable jury to find her

religious practice and protected conduct was a

motivating factor in her termination. This inversion of

the summary judgment standard is not an isolated

error. It is a systemic consequence of a framework that,

as members of this Court have recognized, has strayed

far from its original purpose and now operates to deny

employment discrimination plaintiffs the same right to

a jury trial that every other civil litigant enjoys.

A resounding chorus of jurists across the circuits

has called for a reconsideration of McDonnell Douglas

at summary judgment. This case is the vehicle that

presents the problem in its starkest form. Cross did not

invoke McDonnell Douglas below. She asked the lower

courts to evaluate the evidence as a whole under Rule

56. The district court imposed McDonnell Douglas

anyway, and the Ninth Circuit affirmed in an

unpublished memorandum disposition. The panel

treated the evidence of harassment — supervisors

telling her she could not wear her hijab, the employer

singling her out to coworkers for mockery, HR blocking

investigation of her complaints — as trivial, and then

refused to consider it as proof of motive. It never

addressed the video or expert analysis showing the

bicyclist caused the collision. It never addressed the

hundreds of other drivers who kept their jobs after

preventable collisions. The panel credited the

employer’s account, stripped the record of Cross’s most

powerful proof, and granted summary judgment.

The error below is not merely that the panel got

the facts wrong. It is that McDonnell Douglas required

the panel to get them wrong — to treat the employer’s

stated rationale as dispositive unless Cross could

disprove it. Under Bostock, the employer’s

nondiscriminatory or non-retaliatory reason, even if

true, is irrelevant if discrimination was also a but-for

cause. Under Abercrombie, an employer may not make

an employee’s religious practice a factor in employment

decisions. McDonnell Douglas, as applied below, has

nullified these protections. This Court should grant

review to restore them.

The Petition Should Be Granted Because

This Case Is the Correct Vehicle for the

Court to Address the Resounding Chorus

of Jurists Calling for a Reconsideration of

McDonnell Douglas at Summary Judgment

The McDonnell Douglas burden-shifting

framework has been criticized almost from its

inception. But the criticism has grown louder, more

widespread, and more urgent in recent years. As Chief

Judge Elrod of the Fifth Circuit recently observed,

there is now “a resounding chorus calling for a

reconsideration of McDonnell Douglas Corp. v. Green,

especially as applied at summary judgment.” Awe v.

Harris Health Sys., 163 F.4th 969, 975 (5th Cir. 2026)

(5th Cir. Jan. 12, 2026) (Elrod, C.J., concurring). She

catalogued the jurists who have called for reform

across decades and circuits: Judge Kavanaugh, who

described the prima facie case as “a largely

unnecessary sideshow” that has “spawn[ed] enormous

confusion and wast[ed] litigant and judicial resources,”

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

(D.C. Cir. 2008); then-Judge Gorsuch, who questioned

“whether the McDonnell Douglas game is worth the

candle,” Walton v. Powell, 821 F.3d 1204, 1210-1211

(10th Cir. 2016); Judge Wood, who called the

framework an “allemande worthy of the 16th century,”

Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012)

(Wood, J., concurring); Judge Newsom, who wrote that

the framework “not only lacks any real footing in the

text of Rule 56 but, worse, actually obscures the

answer to the only question that matters at summary

judgment,” Tynes v. Fla. Dep't of Juv. Just., 88 F.4th

939, 949 (11th Cir. 2023) (Newsom, J., concurring);

Judge Quattlebaum, who observed that “[w]hat began

as a tool for processing evidence in a Title VII bench

trial has far too often turned into the substantive test

for intentional discrimination at summary judgment,”

Hollis v. Morgan State Univ., 153 F.4th 369, 387-88

(4th Cir. 2025) (Quattlebaum, J., concurring); and

Judges Hartz, Magnuson, Costa, and Eid, among

others. Awe, 163 F.4th at 975 (collecting cases).

Members of this Court have said the same.

Justice Thomas, joined by Justice Gorsuch, has written

that the McDonnell Douglas framework is

“incompatible with the summary judgment standard,”

“lacks any basis in the text of Title VII or any other

source of law,” and “fails to capture all the ways in

which a plaintiff can prove a Title VII claim.” Ames v.

Ohio Dep't of Youth Servs., 605 U.S. 303, 319-324

(2025) (Thomas, J., concurring). He noted that the

framework “has created outsized judicial confusion.”

Id. at 326. Dissenting from the denial of certiorari in

Hittle v. City of Stockton, Justice Thomas observed that

McDonnell Douglas “may distort a lower court’s

analysis” and has caused “significant confusion and

troubling outcomes on the ground.” 145 S. Ct. 759, 761

(2025) (Thomas, J., dissenting).

This case presents the problem in its starkest

form. The panel below recited as fact the employer’s

disputed assertions: that Cross was “completely at

fault” for the collision, that she had “repeatedly

violated multiple CCCTA policies and California

Vehicle Code violations,” and that Brown was not

similarly situated. App. 2a, 5a-6a. None of this was

undisputed. The video evidence showed the bicyclist

caused the collision by jumping off the curb into Cross’s

lane without looking or signaling. The expert analysis

confirmed it. She had passed probation with high

marks; her own supervisors had rated her “exceptional

behind the wheel” and her performance “outstanding.”

Cross was the only non-probationary driver ever fired

for a collision, out of hundreds of preventable collisions

over the relevant period. Drivers who committed

hit-and-run, falsified documents, and lied to the

employer received last-chance agreements and kept

their jobs. Cross and Keith Polee — the two employees

who complained about discrimination — were among

only three employees ever denied one. The employer’s

own protocol called for placing drivers on paid leave

after collisions to allow them to recover from the

emotional impact. Cross was fired before she returned

to the yard. She was not questioned. She was not

permitted to view the video. The employer then

searched for justifications after the fact — reviewing

video outside the permissible time window, citing

rolling stops never charged against any other driver,

relying on a police report that did not exist when the

termination letter was written.

The panel ignored these facts. It treated the

quid pro quo religious harassment as trivial — three

isolated incidents, not severe or pervasive — and

credited the employer’s disputed claim that the

counseling was over uniform colors, not religion. But

the hijab matched Cross’s uniform. Cross testified that

she was left to choose between her faith and her job.

The employer’s failure even to investigate her

complaints of religious harassment — itself evidence of

discriminatory animus — was never addressed. If this

evidence cannot survive summary judgment, then the

McDonnell Douglas framework has swallowed the

right to a jury trial in employment discrimination

cases.

The problem is not self-correcting. As Judge

Elrod noted, the Fifth Circuit applies McDonnell

Douglas because it is “bound” by precedent, even while

recognizing the framework is “inefficien[t] and

unfair[].” Awe, 163 F.4th at 975 (Elrod, C.J.,

concurring) (quoting Nall v. BNSF Ry. Co., 917 F.3d

335, 351 (5th Cir. 2019) (Costa, J., specially

concurring)). The Ninth Circuit had previously

recognized that a plaintiff could survive summary

judgment by presenting a convincing mosaic of

circumstantial evidence. But after Hittle, and after this

Court denied certiorari, the Ninth Circuit has

retreated into unpublished memorandum dispositions

that apply McDonnell Douglas to credit the employer’s

account and dispose of cases without oral argument,

without published reasoning, and without meaningful

appellate review. These decisions create no circuit

precedent. They cannot be cited. They cannot be

reviewed en banc. Yet they determine the rights of

litigants. The time to address this problem is now,

because the lower courts will not — and in the Ninth

Circuit, given the pattern of unpublished dispositions,

cannot — correct it themselves.

II.

The Petition Should Be Granted to Restore

Rule 56 Standards to Their Proper Place in

Employment Discrimination Cases

The McDonnell Douglas framework was created

for a different era. It was designed to guide judges at

bench trials, at a time when Title VII cases were tried

exclusively to the bench and juries were not available.

The framework was “viewed at the time as a

plaintiff-friendly opinion,” Wells v. Colo. Dep’t of

Transp., 325 F.3d 1205, 1224 (10th Cir. 2003) (Hartz,

J., writing separately), meant “to assure that the

plaintiff [has] his day in court despite the

unavailability of direct evidence.” Trans World

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

Congress amended Title VII in 1991 to provide for jury

trials. The framework, however, did not adapt. It

migrated from the bench trial to summary judgment

without this Court ever examining whether it belonged

there. As Justice Thomas has noted, “as far as I can

tell, this Court has never had occasion to decide

whether the McDonnell Douglas framework is a useful

or appropriate tool for evaluating any kind of claim at

summary judgment.” Ames, 605 U.S. at 321 n.4

(Thomas, J., concurring).

What began as a tool to help plaintiffs overcome

the lack of direct evidence has become the principal

mechanism by which courts deny them access to a jury.

As Judge Elrod put it, quoting Justice Thomas: “circuit

and district courts ‘know how to apply Rule 56,’ but we

do not do so in Title VII cases.” Awe, 163 F.4th at 975

(quoting Hittle, 145 S. Ct. at 763) (Thomas, J.,

dissenting from denial of certiorari). The reason is

McDonnell Douglas. The framework directs courts

away from the question Rule 56 asks — whether the

evidence, viewed as a whole and in the light most

favorable to the non-moving party, would permit a

reasonable jury to find discrimination — and toward a

different question: whether the plaintiff has disproved

the employer’s stated reason.

The distinction is not academic. It determined

the outcome here. Rule 56 requires the court to view

the evidence in the light most favorable to Cross, to

draw all reasonable inferences in her favor, and to

disregard evidence favorable to the employer that a

jury would not be required to believe. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133,

150-151 (2000). Credibility determinations and the

weighing of evidence presented are “jury functions.”

Anderson, 477 U.S. at 255. That rule applies to

credibility and evidence by any party, including

employers.

McDonnell Douglas required the opposite. The

district court held that Cross presented “no direct

evidence of discrimination” because “it is possible that

Morris and Carroll were merely attempting to enforce

the dress code.” App. 17a. Once Cross’s evidence was

classified as circumstantial rather than direct, the

McDonnell Douglas framework applied. The employer

articulated its reasons: the collision, the alleged traffic

violations, the claim that Cross drove unsafely. Under

McDonnell Douglas, those reasons became dispositive

of Cross’s claims. The burden shifted to Cross to

disprove them. The court never asked whether a

reasonable jury, viewing all the evidence together,

could find that Cross’s religious practice or protected

activity was a motivating factor in her termination. It

asked only whether Cross had shown pretext.

The question whether evidence is “direct” or

“circumstantial” should not be dispositive — or even

relevant — at summary judgment. This Court has held

that direct and circumstantial evidence are treated

alike under Title VII. Desert Palace, Inc. v. Costa, 539

U.S. 90, 100 (2003). The Seventh Circuit, applying that

principle, has instructed district courts to “stop

separating ‘direct’ from ‘indirect’ evidence and

proceeding as if they were subject to different legal

standards.” Ortiz v. Werner Enters., Inc., 834 F.3d 760,

765 (7th Cir. 2016). The question is “simply whether

the evidence would permit a reasonable factfinder to

conclude that the plaintiff’s race, ethnicity, sex,

religion, or other proscribed factor caused the

discharge or other adverse employment action.

Evidence must be considered as a whole, rather than

asking whether any particular piece of evidence proves

the case by itself — or whether just the ‘direct’

evidence does so, or the ‘indirect’ evidence.” Id. Cross

cited Ortiz below. Both courts ignored it and applied

McDonnell Douglas instead.

The McDonnell Douglas framework also

encourages courts to compartmentalize evidence rather

than evaluate it as a whole. Here, the panel treated the

harassment evidence — supervisors telling Cross she

could not wear her hijab, the breakroom announcement

singling her out, the coworker mockery — as relevant

only to the hostile work environment claim. Once that

claim was dismissed under the “severe or pervasive”

standard, the panel refused to consider the same

evidence as proof of discriminatory and retaliatory

motive in the termination analysis. This is precisely

the problem Judge Tymkovich identified: McDonnell

Douglas causes courts to “put on blinders” to the

“various ways in which a plaintiff could prove his

claim,” compartmentalizing evidence as relevant to one

step or another rather than considering the full

picture. Timothy M. Tymkovich, The Problem with

Pretext, 85 Denv. U. L. Rev. 503, 519 (2008); see also

Awe, 163 F.4th at 975 (Elrod, C.J., concurring) (quoting

same). The district court’s comparison of Cross’s

harassment claim to the facts in Vasquez v. County of

Los Angeles, 349 F.3d 634, 644 (9th Cir. 2003),

illustrates the problem: the court isolated individual

incidents rather than considering how the harassment

evidence, the failure to investigate, the departure from

protocol, and the disparate discipline fit together as

part of a single picture.

The solution is straightforward. Rule 56 already

provides the standard. The California Legislature has

recognized as much, codifying the principle that

harassment cases involve issues “not determinable on

paper.” Cal. Gov’t Code § 12923(e). The same is true of

discrimination and retaliation cases. Motive is a fact

question. Credibility is a fact question. Whether the

employer’s stated reason displaces a discriminatory or

retaliatory reason is a fact question. These are jury

questions. McDonnell Douglas, as applied at summary

judgment, has supplanted them. This Court should

grant review to restore Rule 56 to its proper place.

III.

The Petition Should Be Granted to

Harmonize Summary Judgment Practice

with Bostock v. Clayton County

In Bostock v. Clayton County, this Court held

that an employer violates Title VII when a protected

characteristic is a but-for cause of the adverse

employment action. 590 U.S. 644 (2020). But the Court

went further — and it is this further step that the

lower courts have not absorbed. Bostock held that the

existence of a legitimate, nondiscriminatory reason for

the employer’s decision is not a defense. “When it

comes to Title VII, the adoption of the traditional

but-for causation standard means a defendant cannot

avoid liability just by citing some other factor that

contributed to its challenged employment decision.” Id.

at 656. The nondiscriminatory reason is “irrelevant.”

Id. at 665. It is of “no significance” if another factor

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

role in the employer’s decision.” Id. at 646. It need not

be the main factor; it is enough that it was a but-for

cause. Id. at 667.

These statements are irreconcilable with the

McDonnell Douglas framework as applied below.1

McDonnell Douglas makes the employer’s stated

reason the center of the entire analysis. The plaintiff

See Noelle N. Wyman, Because of Bostock, 119 Mich. L.

Rev. Online 61, 62 (2021) (“Bostock calls into doubt the continued

utility of the McDonnell Douglas framework”); Deborah A. Widiss,

Proving Discrimination by the Text, 106 Minn. L. Rev. 353, 396

(2021) (“McDonnell Douglas and related judge-created doctrines

must be clarified to conform to the statutory standard — or simply

abandoned”).

must disprove it. If she cannot, she loses — regardless

of what other evidence she presents. But Bostock says

the employer’s non-discriminatory or non-retaliatory

reason does not matter.

In Cross’s case, the employer’s stated reasons —

the collision, the alleged traffic violations, the claim

that Cross drove unsafely — may all be true. The

employer may have believed them. But under Bostock,

that does not end the inquiry. If Cross’s religious

practice, her request for accommodation, or her

complaints of harassment were also a but-for cause of

her termination, the employer is liable. The question is

not whether the employer had a legitimate reason to

fire Cross. The question is whether the unlawful factor

was a but-for cause. On this record, a reasonable jury

could find in Cross’s favor. Cross was the only

non-probationary driver ever fired for a collision.

Drivers with far worse records kept their jobs. The

supervisor she complained about participated in the

decision and delivered the news with a smug, satisfied

look on her face. A jury could disbelieve the employer’s

account — not because Cross disproved it, but because

the evidence, viewed as a whole, supports her claim.

That is enough under Rule 56. That is enough under

Bostock.

The panel never asked this question. It asked

whether Cross had disproved the employer’s stated

reasons. It concluded she had not, and it granted

summary judgment. App. 5a-7a. That is the wrong

question under Bostock.

The evidence supporting that conclusion is not

limited to the discrimination claim. It applies with

equal force to retaliation. Cross engaged in protected

activity when she requested accommodation and when

she complained to HR about the harassment. She was

fired six weeks later. The supervisor she complained

about participated in the video review and delivered

the termination notice with a pleased and smug look.

The employer departed from its own protocols — firing

Cross before she returned to the yard, before any

investigation, before she could view the video or tell

her side. It then searched for justifications after the

fact. And Cross was one of only three employees ever

denied a last-chance agreement — the other being

Keith Polee, who also complained about discrimination.

A jury could find that Cross’s complaints were a but-for

cause of her termination. The panel never reached that

question because McDonnell Douglas directed it

elsewhere.

The employer pleaded a mixed-motive

affirmative defense in its answer; but the employer

never moved for summary judgment on that defense.

The district court never placed the burden on the

employer to prove it would have terminated Cross

regardless of her protected activity. Instead, the court

placed the burden on Cross to disprove the employer’s

reasons — the very burden that Bostock and the

mixed-motive amendment to Title VII were designed to

eliminate. See 42 U.S.C. § 2000e-2(m) (an unlawful

employment practice is established when a protected

characteristic “was a motivating factor for any

employment practice, even though other factors also

motivated the practice”).

The problem is structural. McDonnell Douglas

was built on the assumption that an employment

decision has a single “true” reason — either

discrimination or the employer's stated justification.

Bostock rejected that assumption. Employment

decisions can have multiple causes. The employer’s

reason can be true, and discrimination can also be true.

The question is not which reason was “the”

reason. The question is whether discrimination or

retaliation was a reason. McDonnell Douglas, by

requiring the plaintiff to disprove the employer’s stated

reason, treats these as mutually exclusive. Bostock

says they are not. The framework and the precedent

cannot coexist. This Court should grant review to

resolve the conflict.

IV.

The Petition Should Be Granted Because

the Result in This Religious Discrimination

Case Cannot Be Reconciled with EEOC v.

Abercrombie & Fitch Stores, Inc.

In EEOC v. Abercrombie & Fitch Stores, Inc.,

this Court held that an employer violates Title VII

when an applicant’s religious practice is a motivating

factor in the employer’s decision not to hire her —

even if the employer did not know for certain that she

needed an accommodation. 575 U.S. 768 (2015).

Samantha Elauf wore a hijab to her interview.

Abercrombie refused to hire her because its “Look

Policy” prohibited head coverings, and it assumed —

correctly — that she wore the hijab for religious

reasons. The Court held that motive, not knowledge, is

what matters. “An employer may not make an

applicant's religious practice, confirmed or otherwise,

a factor in employment decisions.” Id. at 773.

The facts of this case are stronger than

Abercrombie. Abercrombie did not know whether Elauf

needed an accommodation; it suspected she did and

refused to hire her. County Connection knew. Cross

requested accommodation. She explained to her

supervisor and to HR why the hijab was important to

her faith. She received what purported to be written

permission, but County Connection had no policy of

religious accommodation, and gave no training on

religious harassment. Despite the letter, Cross’s

supervisors told her she could not wear it anyway.

Supervisor Morris chased her down and told her she

could not wear “that.” Supervisor Carroll gave her a

disgusted look and told her she could not wear “that

thing.” The employer announced a policy change that

singled Cross out to her coworkers. A coworker mocked

her in the breakroom, in front of other co-workers and

the supervisor, who added her own derogatory

comment. HR blocked investigation of her complaints.

Cross was left to choose between her religious practice

and her job. As she testified: “I understood clearly that

if I did not remove it, I was likely to face

consequences.” Cross Decl. ¶44 (App. 39a). The

supervisors had authority over her job, and Cross

perceived them as “threatening me with discipline if I

continued to wear it. I felt they were pressuring me to

remove my Hijab and conform to what everyone else

was doing.” Cross Decl. ¶45 (App. 39a).

This is religious coercion. The EEOC has long

recognized that Title VII “is violated when an employer

or supervisor explicitly or implicitly coerces an

employee to abandon, alter, or adopt a religious

practice as a condition of receiving a job benefit or

privilege or avoiding an adverse employment action.”

EEOC Compliance Manual, Section 12: Religious

Discrimination. 2 The Fifth Circuit has recognized that

“[p]utting employees to this coercive choice imposes a

distinct and irreparable harm beyond lost pay,

benefits, seniority, and other tangible and remediable

losses.” Sambrano v. United Airlines, Inc., 2022 U.S.

App. LEXIS 4347, at *24 (5th Cir. Feb. 17, 2022).

Monetary damages cannot compensate for being told to

abandon one’s faith.

The written permission Cross received did not

eliminate the conflict. The people with direct authority

over her employment told her she could not wear the

hijab. HR refused to intervene. Under both Title VII

and the California Fair Employment and Housing Act,

a reasonable accommodation must “eliminate the

conflict” between the job duty and the religious

practice. Opuku-Boateng v. State of Cal., 95 F.3d 1461,

1467 (9th Cir. 1996); Cal. Code Regs. tit. 2, § 11062. A

memo that the employer’s own supervisors contradict

— and that HR refuses to enforce — does not eliminate

the conflict. It creates one.

The EEOC Compliance Manual can be accessed at:

https://www.eeoc.gov/laws/guidance/section-12-religiousdiscrimination#

h_38342662426791610748907146.

The panel below dismissed all of this in a

footnote. It acknowledged Cross’s argument that she

was subjected to quid pro quo religious harassment but

held that “even assuming such a theory applies here,

Cross does not present sufficient evidence to support

it.” App. 15a n.1. That holding cannot be squared with

the record. Cross presented evidence that two

supervisors told her she could not wear her hijab. That

the employer singled her out to coworkers. That she

was mocked. That HR blocked investigation. That she

believed she would face discipline if she continued her

religious practice. That she was fired six weeks later,

and informed of her termination by one of the same

supervisors. A jury could find — easily — that Cross

was pressured to abandon her religious practice and

terminated when she would not. The panel’s conclusion

to the contrary is not a reflection of the evidence. It is

a reflection of a framework that allowed the court to

credit the employer’s account over Cross’s, to isolate

the harassment evidence from the termination

analysis, and to dispose of the claim without ever

confronting what the record showed.

This Court should grant review to ensure that

the protections of Abercrombie are not hollow. An

employer who would be liable under Abercrombie for

refusing to hire a Muslim woman based on her hijab

cannot escape liability for firing her based on the same

religious practice simply by articulating a reason she

cannot disprove. Title VII does not permit it.

Abercrombie confirmed as much. McDonnell Douglas,

as applied below, has nullified that protection. This

case presents the opportunity to restore it.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Jeremy L. Friedman

Counsel of Record

2801 Sylhowe Road

Oakland, CA 94602

(510) 530-9060

July 20, 2026

Alan J. Reinach

Jonathon Cherne

CHURCH STATE COUNCIL

2686 Townsgate Road

Westlake Village, CA 91361

(805) 413-7398

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

A P PEN DI X A – OPI N ION OF T H E

UNITED STATES COURT OF APPEALS

FOR T HE NIN T H CIRCU I T, FILED

JANUARY 13, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A P P E N DI X B – OR DE R G R A N T I NG

DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT OF THE UNITED

STATES COURT OF APPEALS, FILED

SEPTEMBER 3, 2024 . . . . . . . . . . . . . . . . . . . . . . . . .9a

APPENDIX C – ORDER OF THE UNITED

STAT ES COU RT OF A PPEA LS FOR

T H E N I N T H C I R C U I T, F I L ED

FEBRUARY 20, 2026 . . . . . . . . . . . . . . . . . . . . . . . . 28a

APPENDIX D – DECLARATION OF SHANNON

CROSS IN THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF CALIFORNIA, FILED JUNE 14, 2024 . . . . . 30a

APPENDIX E – DECLARATION OF DAVID

BRINTON IN THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF CA LIFORNI A , FILED

JUNE 14, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT, FILED JANUARY 13, 2026

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 24-6068

D.C. No. 4:21-cv-01312-JST

SHANNON CROSS,

Plaintiff-Appellant,

CENTRAL CONTRA COSTA

TRANSIT AUTHORITY,

Defendant-Appellee.

Filed January 13, 2026

MEMORANDUM*

NOT FOR PUBLICATION

Appeal from the United States District Court

for the Northern District of California

Jon S. Tigar, District Judge, Presiding

Submitted January 9, 2026**

San Francisco, California

* This disposition is not appropriate for publication and is not

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

** The panel unanimously concludes this case is suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

Appendix A

Before: NGUYEN and BENNETT, Circuit Judges, and

MATSUMOTO, District Judge.***

Plaintiff-Appellant Shannon Cross (“Cross”) appeals

the district court’s grant of summary judgment in favor of

her former employer, Defendant-Appellee Central Contra

Costa Transit Authority (“CCCTA”). Less than a year

after her employment as a bus operator, Cross collided

with a bicyclist while operating a CCCTA bus. After an

investigation revealed that Cross was completely at fault

for the collision, and had also repeatedly violated multiple

CCCTA policies and California Vehicle Code violations,

CCCTA terminated Cross. Cross sued, alleging claims

for religious discrimination, retaliation, and hostile work

environment under Title VII of the Civil Rights Act and

California’s Fair Employment and Housing Act (“FEHA”).

We have jurisdiction under 28 U.S.C. § 1291, and review

de novo. Brinson v. Linda Rose Joint Venture, 53 F.3d

1044, 1047 (9th Cir. 1995). We affirm.

1. The district court did not err in granting summary

judgment to CCCTA on Cross’s religious discrimination

claims under Title VII and FEHA. “To establish a prima

facie case, a plaintiff must offer evidence that gives rise

to an inference of unlawful discrimination.” Cordova v.

State Farms Ins. Cos., 124 F.3d 1145, 1148 (9th Cir. 1997)

(citation modified). A prima facie case may be established

either by “direct evidence of discriminatory intent” or

through the McDonnell Douglas framework. Wallis v. J.R.

*** The Honorable Kiyo A. Matsumoto, United States

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

designation.

Appendix A

Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994); McDonnell

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

Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (2000) (“Because

of the similarity between state and federal employment

discrimination laws, California courts look to pertinent

federal precedent when applying our own statutes.”).

“Direct evidence of discriminatory intent consists of

evidence which, if believed, proves the fact of discriminatory

animus without inference or presumption.” Mayes v.

WinCo Holdings, Inc., 846 F.3d 1274, 1280 (9th Cir. 2017)

(quoting Aragon v. Republic Silver State Disposal Inc.,

292 F.3d 654, 662 (9th Cir. 2002)) (emphasis added).

As direct evidence, Cross points to the statements

of Supervisors Morris and Carroll that she cannot wear

her hijab. But CCCTA explained that the supervisors

were “merely attempting to enforce the dress code,”

and under CCCTA’s handbook for transit operators,

supervisors were expressly empowered to issue verbal

warnings for perceived rule infractions of CCCTA’s policy,

such as wearing unauthorized headwear. “[W]here there

are obvious alternative explanations for the purportedly

. . . invidious discrimination plaintiff asks us to infer,

discrimination is not a plausible conclusion.” Hittle v.

City of Stockton, California, 101 F.4th 1000, 1014 (9th Cir.

2024) (citation modified). Because these statements do not

necessarily lead to the conclusion that the supervisors

harbored an animus against the Muslim religion rather

than an attempt to enforce the dress code, Cross fails to

establish discriminatory intent through direct evidence.

Appendix A

Under the McDonnell Douglas burden-shifting

framework, a plaintiff may establish a prima facie case of

discrimination by showing: (1) they belong to a protected

class; (2) they were qualified to do the job; (3) they were

subject to an adverse employment action; and (4) the

employer treated similarly situated employees outside of

the plaintiff’s class more favorably, or other circumstances

surrounding the adverse employment action give rise to

an inference of discrimination. Fonseca v. Sysco Food

Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004). If the

plaintiff establishes a prima facie case, the “burden then

must shift to the employer to articulate some legitimate,

nondiscriminatory reason for the employee’s rejection.”

McDonnell Douglas, 411 U.S. at 802. If the employer

satisfies that burden, then the burden shifts back to the

plaintiff to show that the “proffered reason was a pretext

for discrimination.” Bergene v. Salt River Project Agr.

Imp. & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001).

As evidence of a similarly situated employee who

was treated more favorably, Cross points to Brown, a

non-Muslim bus operator at CCCTA who also had an

occurrence with a bicyclist. But there were “significant

differences between” Cross and Brown. First, the Police

Department found that Brown was “not at fault” for her

accident, whereas Cross was found “100% at fault by the

Police Department.” Second, Brown’s occurrence was

deemed “non-preventable,” whereas Cross’s occurrence

was deemed “preventable.” Finally, Brown had been a

“25+ year veteran,” whereas Cross had been driving with

CCCTA for less than a year. See Tyson v. Gannett Co.,

538 F.3d 781, 784 (7th Cir. 2008) (citation omitted) (“[D]

Appendix A

ifferences in seniority will tend to make two employees

dissimilar for purposes of the plaintiff’s prima facie

case.”). Thus, because of these differences, Brown is not

similarly situated “in all material respects,” Moran v.

Selig, 447 F.3d 748, 755 (9th Cir. 2006), and Cross failed

to establish a prima facie case of discrimination under

McDonnell Douglas.

2. The district court did not err in granting summary

judgment to CCCTA on Cross’s retaliation claims under

Title VII and FEHA. Cross argues that a reasonable

jury could find that she was unlawfully terminated in

retaliation “because of” her request to wear a hijab or

her complaints of harassment. To determine retaliation

claims brought under Title VII and FEHA, courts apply

the McDonnell Douglas burden-shifting framework. See

Porter v. Cal. Dep’t of Corrs., 419 F.3d 885, 894 (9th Cir.

2004); Loggins v. Kaiser Permanente Int’l, 151 Cal. App.

4th 1102, 1108–09 (2007). An employee may establish a

prima facie case of retaliation by showing: (1) she engaged

in a protected activity; (2) her employer subjected her

to an adverse employment action; and (3) a causal link

exists between the protected activity and the adverse

action. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir.

2000). If the plaintiff establishes a prima facie case, “the

burden shifts to the defendant to articulate a legitimate

nondiscriminatory reason for its decision.” Id. If the

employer satisfies that burden, then the burden shifts

back to the plaintiff to show that the “proffered reason

was a pretext for unlawful discrimination.” Noyes v. Kelly

Servs., 488 F.3d 1163, 1168 (9th Cir. 2007).

Appendix A

At issue is the district court’s analysis in the third

step. Cross has not shown that CCCTA’s termination

was pretextual. CCCTA terminated Cross because Cross

violated California Vehicle Code § 21760(b) when she hit a

bicyclist. Cross “acknowledged that she was ‘at complete

fault’” for the accident. As part of the investigation

on Cross’s termination, a human resources director

observed that Cross had “violated several other serious

rules and traffic laws, including running stop signs and

red lights, using her cell phone while in revenue service,

and failing to stop at BART crosswalks.” The director

concluded that Cross “repeatedly drives unsafely.” Finally,

contrary to Cross’s argument, CCCTA did not violate

its own policy and procedure, which allowed CCCTA to

initiate “termination” for reasons including “poor job

performance” and “violation of law.” Because Cross did not

demonstrate that CCCTA’s reasons for her termination

were pretextual, she fails to meet her burden on her

retaliation claims, and CCCTA is entitled to summary

judgment.

3. The district court did not err in granting summary

judgment to CCCTA on Cross’s harassment claims

alleging hostile work environment under Title VII and

FEHA. To allege a prima facie hostile work environment

based on religion, Cross needed to plead: “(1) that [s]he

was subjected to verbal or physical conduct of a harassing

nature [based on her religion]; (2) that this conduct was

unwelcome; and (3) that the conduct was sufficiently severe

or pervasive to alter the conditions of [her] employment

Appendix A

and create an abusive working environment.” Kortan

v. California Youth Auth., 217 F.3d 1104, 1110 (9th Cir.

2000); Lyle v. Warner Bros. Television Prods., 38 Cal. 4th

264, 279 (2006). “[W]hether an environment is ‘hostile’

or ‘abusive’ can be determined only by looking at all the

circumstances.” Harris v. Forklift Sys., Inc., 510 U.S. 17,

23 (1993). But “that conduct must be extreme to amount

to a change in the terms and conditions of employment.”

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

Cross testified that there was never religious insult

directed towards her, and based her harassment claim on

three statements: Supervisor Morris telling Cross “you

can’t wear that” hijab; Supervisor Carroll telling Cross she

could not wear “that thing” on her head; and an unidentified

bus operator remarking to Cross “now I’m going to wear

my hat for religious purposes” after Morris announced

that the uniform policy for unauthorized headwear would

be enforced. But three allegedly offensive comments over

the course of nearly a year are not sufficiently severe or

pervasive to constitute a hostile work environment. See

Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 643–44 (9th

Cir. 2003) (holding that “[t]wo isolated offensive remarks”

combined with “other complaints about unfair treatment”

were “not severe or pervasive enough to create a hostile

work environment”). Because these “offhand comments[ ]

and isolated incidents (unless extremely serious) will

not amount to discriminatory changes in the ‘terms and

conditions of employment,’” Faragher, 524 U.S. at 788, the

Appendix A

district court did not err in granting summary judgment

for CCCTA’s motion on her harassment claim.1

AFFIRMED.

1. Cross urges the Ninth Circuit to recognize the theory of

quid pro quo harassment in the context of religious discrimination,

which essentially occurs when “a supervisor demands that an

employee alter or renounce some religious belief in exchange for

job benefits.” Weiss v. United States, 595 F. Supp. 1050, 1056 (E.D.

Va. 1984) (citing Katz v. Dole, 709 F.2d 251 (4th Cir. 1983)). But

even assuming such a theory applies here, Cross does not present

sufficient evidence to support it.

B GRANTING

APPENDIX BAppendix

— ORDER

DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS, FILED SEPTEMBER 3, 2024

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

Case No. 21-cv-01312-JST

SHANNON CROSS,

Plaintiff,

CENTRAL CONTRA COSTA TRANSIT

AUTHORITY,

Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

Re: ECF No. 56

Before the Court is Defendant Central Contra Costa

Transit Authority’s (“CCCTA”) motion for summary

judgment. ECF No. 56. The Court will grant the motion.

BACKGROUND

CCCTA is a joint powers authority formed by

eleven jurisdictions to provide public transportation and

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Appendix B

paratransit services in central Contra Costa County. In

the summer of 2018, CCCTA hired Plaintiff Shannon

Cross, a Black Muslim woman, as a transit operator

trainee. Cross Dep. at 108:8-20, ECF No. 56-3; Cross

Decl. ¶ 1, ECF No. 76. As part of her Muslim faith, Cross

wears a hijab to cover her natural hair. Cross Decl. ¶ 2.

During orientation, Cross learned that CCCTA had a

policy prohibiting employees from wearing head wear. Id.

¶ 4. To comply with this uniform policy, she wore a wig

to cover her hair during her probationary period. Id. ¶ 7.

After completing her probationary period in February

2019, Cross requested that she be permitted to wear her

hijab. Cross Dep. at 163:12-165:2; Cross Decl. ¶¶ 13, 17.

Initially she asked one of her supervisors, Preston Ennis.

Cross Decl. ¶ 13. However, he told her he was unaware of

the company’s policy and said he would get back to her. Id.

He left CCCTA before giving Cross an answer. Id. Cross

then asked Kristina Martinez in human resources who

gave her an accommodation form. Id. ¶¶ 17, 19. CCCTA

granted this request, permitting her to wear a hijab

consistent with CCCTA›s uniform policy which required

she wear certain “regulatory solid color choices.” Cross

Dep. at 170:13-21, Martinez Decl., Ex. A., ECF No. 56-2;

Cross Decl. ¶ 20. On February 13, 2019, Transportation

Director Yvette Glenn emailed all supervisors informing

them that Cross had been approved to wear a hijab

consistent with CCCTA’s uniform requirements. Glenn

Decl., Ex. G, ECF No. 56-1.

Sometime after CCCTA approved Cross’s request

to wear her hijab, supervisor Sophia Martinez Morris

chased after her on the stairs to the parking lot and said

11a

Appendix B

she could not “wear that” referring to Cross’s hijab. Cross

Dep. at 175:14-178:23; Cross Decl. ¶ 21. Cross reported

this incident to Martinez, who reminded Morris that

CCCTA had approved the color of Cross’s hijab. Cross

Dep. at 182:22-183:22. Sometime after, Morris announced

in the breakroom to all bus operators that she would

be disciplining operators who wore unauthorized head

wear, such as snap hats, fisherman hats, fedoras, and

headbands. Cross Dep. at 184:4-185:5; Cross Decl. ¶ 30.

Another operator, looking at Cross as he walked by, said

“now I am going to wear my hat for religious purposes.”

Cross Dep. at 185:2-5; Cross Decl. ¶ 32. Although Morris

was present, she did not say anything to this other bus

operator. Cross Dep. at 185:7-14. Cross reported the

incident to Human Resources Director, Lisa Rettig,

who responded: “some people are stupid.” Cross Dep. at

185:18-186:8. Cross was approached again, this time by

Transit Manager Aline Carroll, who said Cross could not

wear “that thing,” referring to Cross’s hijab. Cross Dep.

at 187:16-188:3; Cross Decl. ¶ 41. Cross again reported the

incident to Rettig. Cross Dep. at 188:19-190:1.

On Thursday, May 30, 2019, while on her bus route,

Cross was involved in a collision with a bicyclist. Glenn

Decl., Exs. H, I, J. Cross contacted CCCTA dispatch

and informed them that the bicycle had run into the

bus. Glenn Decl., Exs. H, J at 1, 3-7; Cross Dep. at

206:14-207:25. Police officers arrived at the scene. Glenn

Decl., Exs. I, J at 7. That same day, the police went to

CCCTA’s administrative office and requested to view

the video from the on-board cameras of the bus. Glenn

Decl. ¶ 9. Director of Transportation Yvette Glenn and

12a

Appendix B

Transportation Managers Aline Carroll and Miguel

Duenas also watched the on-board video. Id. The police

determined that Cross was at fault for the collision and

that she violated California Vehicle Code Section 21760(b),

which requires drivers to remain at a “safe distance” from

any bicycle proceeding the same direction as the driver

and to “not interfere with the [bicycle’s] safe operation.”

Glenn Decl., Ex. I at 4-5. CCCTA likewise concluded that

Cross was at fault and violated California traffic laws and

numerous work rules, including rules requiring that bus

operators proceed only when safe to do so, regardless of

the right-of-way; remain alert and fully aware of traffic

and pedestrians in the immediate area; and perform all

duties to the best of their abilities and in accordance with

written and unwritten standards, policies, and practices.

Glenn Decl., Ex. K. CCCTA issued Cross a notice of intent

to terminate. Id.

On June 7, 2019, CCCTA had a Skelly hearing for

Cross. Glenn Decl. ¶ 13, Ex. M at 1; Cross Dep. at 248:514. During the hearing, Cross claimed that an alarm on

the bus was distracting her. Glenn Decl., Ex. M at 1. As

a result, CCCTA reviewed additional on-board audio and

video footage but did not hear an alarm at the time of

the collision. Id. This additional footage review revealed

that Cross had run 30 stop signs and red lights, used her

phone while the bus was in revenue service, and failed to

stop at BART crosswalks. Glenn Decl. ¶ 13, Ex. M at 1-3.

Accordingly, Glenn determined Cross’s termination was

appropriate. Glenn Decl., Ex M at 3.

On or around June 20, 2019, the Union grieved

Cross’s termination. Glenn Decl., Ex. P. The grievance

13a

Appendix B

included a statement by Cross in which she claimed that

her termination was discriminatory because another

bus operator struck a bicyclist but received less severe

discipline. Id. Cross later revealed that individual was

bus operator Ronnette Brown. Glenn Decl., Ex. Q; Cross

Dep. at 300:3-13. CCCTA denied Cross’s grievance,

explaining that Brown’s conduct and circumstances were

dissimilar: CCCTA had employed Brown for over 25 years;

she had demonstrated safe driving skills; and the police

determined she was not at fault for the collision. Glenn

Decl., Exs. Q, R at 2.

On February 24, 2021, Cross brought this action

against CCCTA for (1) discriminatory termination; (2)

retaliation; and (3) harassment in violation of both Title

VII and California’s Fair Employment and Housing Act

(“FEHA”). ECF No. 1.

II. JURISDICTION

The Court has jurisdiction under 28 U.S.C. §§ 1331

and 1367.

III. EVIDENTIARY OBJECTIONS

In its reply, CCCTA raises various objections to

evidence Cross presented in her opposition. ECF No. 82 at

19-20. CCCTA’s objections are overruled. Cross’s motion

to file a sur-reply to address these evidentiary objections

is denied as moot. ECF No. 87.1

1. Cross also requested leave to file a sur-reply to address new

evidence and arguments presented in CCCTA’s reply. ECF No. 87.

14a

Appendix B

IV. LEGAL STANDARD

Summary judgment is proper when a “movant shows

that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). A dispute is genuine only if

there is sufficient evidence “such that a reasonable jury

could return a verdict for the nonmoving party,” and a

fact is material only if it might affect the outcome of the

case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). When deciding a motion for summary judgment,

the court must draw “all justifiable inferences” in the

nonmoving party’s favor and may not weigh evidence or

make credibility determinations. Id. at 255.

Where the party moving for summary judgment

would bear the burden of proof at trial, that party “has

the initial burden of establishing the absence of a genuine

issue of fact on each issue material to its case.” C.A.R.

Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d

474, 480 (9th Cir. 2000). Where the party moving for

summary judgment would not bear the burden of proof at

trial, that party “must either produce evidence negating

The Court construes the request as an objection to the introduction

of new evidence, and sustains the objection as to the reply declaration

of Yvette Glenn. The balance of Cross’s objections are overruled.

See Garcia v. Biter, 195 F. Supp. 3d 1131, 1134 (E.D. Cal. 2016)

(“Defendants, however, did not provide any new evidence in the

reply to Plaintiff’s opposition nor did Defendants raise new issues

or arguments. Rather, Defendants cited to the record, their Motion,

and various legal authorities and substantively addressed those new

issues raised by Plaintiff in his opposition.” (emphasis in original)).

15a

Appendix B

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. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.

2000). If the moving party satisfies its initial burden of

production, the nonmoving party must produce admissible

evidence to show that a genuine issue of material fact

exists. Id. at 1103. It is not the court’s duty “to scour the

record in search of a genuine issue of triable fact”; instead,

the nonmoving party must “identify with reasonable

particularity the evidence that precludes summary

judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.

1996) (citation omitted). If the nonmoving party fails to

make the required showing, the moving party is entitled

to summary judgment. Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986).

V. DISCUSSION

Religious Discrimination

Cross alleges she was terminated in violation of

Title VII and FEHA, which prohibit an employer from

discriminating against an individual with respect to

the terms, conditions, or privileges of their employment

because of her religion. Cross bears the burden of proving

her prima facie case of religious discrimination. Chuang v.

Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1123

(9th Cir. 2000) (citing McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973)). “To establish a prima facie case, a

plaintiff must offer evidence that gives rise to an inference

16a

Appendix B

of unlawful discrimination.” Cordova v. State Farms Ins.

Cos., 124 F.3d 1145, 1148 (9th Cir. 1997) (internal quotation

marks, alterations and citation omitted). “The prima facie

case may be based either on a presumption arising from

the factors such as those set forth in McDonnell Douglas,

or by more direct evidence of discriminatory intent.”

Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).

Under the McDonnell Douglas framework a plaintiff may

make out a prima facia case by showing: (1) they belong

to a protected class; (2) they were qualified to do the job;

(3) they were subject to an adverse employment action;

and (4) the employer treated similarly situated employees

outside of the plaintiff’s class more favorably, or other

circumstances surrounding the adverse employment

action give rise to an inference of discrimination. Fonseca

v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th

Cir. 2004). If the plaintiff makes out a prima facie case,

the burden shifts to the employer to produce evidence of

“a legitimate, nondiscriminatory reason” for the adverse

employment action. Bergene v. Salt River Project Agric.

Imp. & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001). If

the employer satisfies that burden, then the burden shifts

back to the plaintiff to show that the “proffered reason

was a pretext for the discrimination.” Id.

Despite Cross’s argument to the contrary, she

presents no direct evidence of discrimination. Direct

evidence of discriminatory intent consists of “evidence

which, if believed, proves the fact [of discriminatory

animus] without inference or presumption.” Aragon v.

Republic Silver State Disposal Inc., 292 F.3d 654, 662

(9th Cir. 2002) as amended (July 18, 2002) (alteration and

17a

Appendix B

emphasis in original) (quoting Godwin v. Hunt Wesson,

Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)). “Direct evidence

typically consists of clearly sexist, racist, or similarly

discriminatory statements or actions by the employer.”

Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 1090, 1095

(9th Cir. 2005). Cross contends that the statements of two

supervisors, Morris and Carroll, constitute direct evidence

of discrimination. ECF No. 75 at 19. Specifically, after

Cross clocked out one day and was walking to the parking

lot, she was approached by Morris who told her she could

not “wear that” referring to Cross’s hijab. Cross Decl. ¶ 21.

On a separate occasion, Carroll told her she “could not

wear ‘that thing’ on [her] head” referring to Cross’s hijab.

Id. ¶ 41. These statements, however, do not lead inevitably

to the conclusion that Morris and Carroll harbored

discriminatory animus against Muslims; it is possible that

Morris and Carroll were merely attempting to enforce the

dress code. Concluding from these statements that Marris

and Carroll harbored discriminatory intent requires an

inferential step. The Court cannot find discriminatory

intent “[w]here there are ‘obvious alternative explanations

for the purportedly unlawful conduct and the purposeful

invidious discrimination plaintiff asks us to infer.’” Hittle

v. City of Stockton, California, 101 F.4th 1000, 1014 (9th

Cir. 2024) (quoting Frith v. Whole Foods Mkt., Inc., 38

F.4th 263, 276 (1st Cir. 2022)).

Thus, the Court considers whether Cross has made

out a prima facie case under the McDonnell Douglas

framework. CCCTA does not dispute Cross is a member

of a protected class, was qualified to do the job, and was

subject to an adverse employment action. ECF No. 56 at

18a

Appendix B

18-22. Accordingly, the only issue is whether Cross has

put forth evidence that CCCTA treated similarly situated

employees outside of Cross’s class more favorably, or

whether other circumstances surrounding her termination

give rise to an inference of discrimination.

Cross points to Brown as a similarly situated, nonMuslim, individual who was treated more favorably.

ECF No. 75 at 23. CCCTA responds that the two are not

similarly situated. ECF No. 56 at 19-21. “In order to show

that the ‘employees’ allegedly receiving more favorable

treatment are similarly situated . . . the individuals

seeking relief must demonstrate, at the least, that they

are similarly situated to those employees in all material

respects.” Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006).

While Cross and Brown both had accidents involving a

bicyclist while operating a bus, the Court agrees with

CCCTA that the two were not similarly situated in all

material respects. In Brown’s case, the police found that

the bicyclist was at fault for the collision, whereas the

police found Cross caused the collision she was involved

in, by violating California Vehicle Code Section 21760(b).

Glenn Decl., Exs. I, R at 2; Glenn Dep. at 149:11-15; Cross

Dep. at 352:23-353:14. Although CCCTA initially prepared

a notice of intent to terminate Brown’s employment, the

Union successfully appealed CCCTA’s finding that her

collision was preventable and her fault. Glenn Decl., Exs.

S, T; Glenn Dep. at 155:2-9. By contrast, the Union and

Cross never disputed that the collision was her fault or

preventable. Cross Dep. at 244:16-248:4; Glenn Decl.,

Exs O, P. Moreover, Brown worked for CCCTA for over

25 years where Cross had been employed for less than

19a

Appendix B

a year. Glenn Decl., Exs Q, N; see Tyson v. Gannett

Co., 538 F.3d 781, 784 (7th Cir. 2008) (citation omitted)

(length of employment if it “is something that an employer

must credit when making employment decisions,” will

“tend to make two employees dissimilar for purposes

of the plaintiff’s prima facie case”). In short, there were

significant differences between them.

Nor do the other bus drivers Cross identifies qualify

as similarly situated employees outside of her class. For

one, Cross does not submit evidence regarding whether

these bus drivers were outside of her protected class. In

fact, CCCTA presents evidence that at least one of these

drivers is himself a practicing Muslim. Sadat Decl. ¶ 3,

ECF No. 82-4. Moreover, none of the other incidents

involved a pedestrian or bicyclist. See Vasquez v. Cnty.

of L.A., 349 F.3d 634, 641 (9th Cir. 2003) (finding that

plaintiff was not similarly situated to comparator because

comparator “did not engage in problematic conduct of

comparable seriousness to that of” plaintiff). And Cross

fails to supply other details regarding their conduct, the

surrounding circumstances, what happened during any

Skelly hearing or grievance proceedings, or their length

of employment.

Cross’s other evidence surrounding the circumstances

of her termination - specifically, the statements by her

two supervisors that she could not wear her hijab - also

fail to give rise to an inference of discrimination. Cross

Decl. ¶ 21 (describing how Morris approached her in the

parking lot and told her she couldn’t wear her hijab); Id.

¶ 41 (describing how Carroll told her she “could not wear

20a

Appendix B

‘that thing’ on [her] head” referring to Cross’s hijab).

Ambiguous comments that are not tied directly to the

adverse employment action are “weak evidence and not

enough to create an inference of . . . discrimination.”

Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th

Cir. 1996). Accordingly, Cross has failed to establish a

prima facie case of discrimination and CCCTA is entitled

summary judgment on her discrimination claim. 2

B. Retaliation

The McDonnell Douglas burden-shifting framework

also applies to retaliation claims brought under Title VII

and FEHA. See Porter v. Cal. Dep’t of Corrs., 419 F.3d

885, 894 (9th Cir. 2004); Loggins v. Kaiser Permanente

Int’l, 151 Cal. App. 4th 1102, 1108-09 (2007). To make out a

prima facie case of retaliation, an employee must show that

(1) she engaged in a protected activity; (2) her employer

subjected her to an adverse employment action; and (3) a

causal link exists between the protected activity and the

adverse action. Ray v. Henderson, 217 F.3d 1234, 1240

(9th Cir. 2000). If the plaintiff establishes a prima facie

case, “the burden shifts to the defendant to articulate a

legitimate nondiscriminatory reason for its decision.” Id.

If the employer satisfies that burden, then the burden

shifts back to the plaintiff to show that the “proffered

2. Cross also claims that CCCTA failed to adequately accommodate

her religious beliefs. ECF No. 75 a 16-18. Cross did not make these

allegations in her complaint, so they are not properly before the Court. See

Earth Island Inst. v. United States Forest Serv., 87 F.4th 1054, 1073 (9th

Cir. 2023) (“Since Earth Island did not plead this claim in its complaint, it

was not properly before the district court, and fails.”).

21a

Appendix B

reason was a pretext for unlawful discrimination.” Noyes

v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007).

CCCTA does not dispute that Cross has made out a

prima facie case of retaliation. ECF No. 56 at 24-25. Thus,

the burden shifts to CCCTA to articulate “a legitimate,

nondiscriminatory reason for the adverse employment

action.” Fonseca, 374 F.3d at 849. CCCTA has met that

burden. CCCTA claims it terminated Cross because she

was found to be responsible for an accident, and to have

violated California Vehicle Code Section 21760(b), when

she hit a bicyclist. Glenn Decl., Exs. K, L, M, O, Q, R.

Accordingly, the burden shifts back to plaintiff to show

that CCCTA’s proffered reason was pretextual. Fonseca,

374 F.3d at 849. Cross advances several arguments in an

effort to meet her burden.

First, Cross argues that “an employer’s failure to

conduct a proper investigation can itself be evidence of

unlawful pretext.” ECF No. 75 at 20. The argument is

supported by the law, e.g., Nazir v. United Airlines, Inc.,

178 Cal. App. 4th 243, 277 (2009), but not by the facts. The

evidence shows that before issuing the Notice of Intent

to Terminate Cross’s employment, CCCTA dispatch

spoke to Cross at the scene of the collision and CCCTA

management reviewed the video of the accident. Glenn

Decl. ¶ 9. A few days later, CCCTA’s manager of training

found that the collision was preventable. Glenn Decl., Ex.

L. CCCTA gave Cross a Skelly hearing, during which she

claimed that an alarm was distracting her, and the Union

requested that CCCTA confirm this through further

review of the onboard video. Glenn Decl., Ex. M. But

22a

Appendix B

that review only made things worse for Cross - not only

was there no evidence of an alarm, but the video showed

Cross running stop signs and red lights. CCCTA then

performed a further review and confirmed that Cross had

committed additional traffic violations over the course of

multiple days; that Cross had used her cell phone while

in revenue service; and that Cross failed to stop at BART

crosswalks. Glenn Decl., Ex. M.

After Glenn issued the Notice of Termination, Cross

grieved her termination and submitted a statement laying

out why she believed CCCTA incorrectly terminated

her employment. Glenn Decl., Exs. P, R. At Step 2 of the

grievance process, a different manager, Human Resources

Director Rettig, met with Cross and discussed CCCTA’s

investigation into Cross’s claim about her driving record.

Glenn Decl., Ex. Q. Rettig observed Cross “running stop

signs and speeding at Concord BART every day” and

concluded that Cross was not “just having a bad day”

but that “[s]he repeatedly drives unsafely.” Id. Rettig

also investigated Cross’s claim about Brown and found

“significant differences in the two occurrences.” Id. At

Step 3, Assistant General Manager Bill Churchill met

with Cross and considered all the evidence, including the

video of the incident, radio and phone communications

between Cross and dispatch, the police report, Supervisor

logs, vehicle defect logs and all documents related to the

termination and grievance proceedings including the

notes of those who attended the hearings on behalf of

CCCTA. Glenn Decl., Ex R. Churchill came to the same

conclusion as the other managers—that Cross “clearly

hit the cyclist causing the accident,” violated CCCTA

23a

Appendix B

work rules, and engaged in an “extremely dangerous and

illegal driving practice.” Id. Cross’s Union decided not to

escalate the grievance to arbitration. Glenn Reply Decl.

¶ 7. Cross fails to explain why, or offer any evidence that,

this investigation was insufficient.

Second, Cross contends that CCCTA’s failure to

follow its own policies and procedures provide evidence

of pretext. ECF No. 75 at 20. The only specific policies

Cross points to are CCCTA’s “progressive discipline

policy,” which she contends requires notice and retraining

following a preventable collision, and Article 52 of the MOU,

“which prohibited the employer from searching through

electronic media not directly present in the pending

infraction in order to buttress its termination decision.”

Id. at 21. Regarding the former point, the evidence shows

that CCCTA’s practice and policy of progressive discipline

varies depending on the severity of driver’s conduct. Glenn

testified that following a preventable accident, “the normal

course is to give someone, depending on the incident, a

written warning, which is the form itself; and then on a

second occurrence, to be given a four-hour retraining.”

Glenn Dep. at 86:14-20. But she also testified that “it all

comes back to discipline and the level and the severity

of the accident and the occurrence,” id. at 86:20-22, and

that CCCTA “can go straight to termination, depending

on the facts and the severity,” id. at 141:10-13; see also

Glenn Decl., Ex. E, ECF No. 56-1 at 92 (CCCTA and

Union’s MOU establishing that “if the seriousness of

the infraction warrants, disciplinary action may begin”

at termination). Thus, there is no evidence that CCCTA

24a

Appendix B

violated its own policies. And Article 52 3 of the MOU does

not bar searching electronic media not directly present

in the pending infraction. Id. at 92-93. Rather, Article

62 provides that CCCTA “may use electronic media

evidence as support for employee disciplinary action” but

cannot “initiate the review of electronic media solely for

the purpose of looking for employee misconduct.” Id. at

103. It must “have a legitimate business reason, such as

but not limited to, a reported or observed incident, law

enforcement request, accident or unreported damage,” to

review electronic media. Id. Cross points to no evidence

that CCCTA violated this policy. Instead, the evidence

reflects that CCCTA only reviewed video footage beyond

the incident in question because the Union requested that

CCCTA investigate Cross’s claim that an alarm distracted

her on the day of the incident and that she was a safe

driver. Glenn Decl., ¶ 13, Ex M. In any event, CCCTA’s

policy gave it the right to review the footage because Cross

had been involved in an accident.

Third, Cross contends that other bus operators were

treated more favorably, indicating CCCTA’s proffered

reason for her termination was pretextual. ECF No. 75

at 21-23. However, as explained above, Cross has failed

to show that these individuals were similarly situated.

Moran, 447 F.3d at 755 (“In order to show that the

‘employees’ allegedly receiving more favorable treatment

are similarly situated . . . the individuals seeking relief

must demonstrate, at the least, that they are similarly

situated to those employees in all material respects.”).

3. Cross cites Article 52 of the MOU in her briefing, but that Article

does not say anything regarding electronic media. Cross appears to be

referring to Article 62.

25a

Appendix B

Finally, Cross contends that she was “falsely”

found to have violated the “3 feet” rule, Cal. Veh. Code

§ 21760, and to have sideswiped a bicyclist. ECF No. 75

at 21-23. The relevant question, however, is not whether

the decisionmaker based its termination decision on an

“objectively false” version of an employee’s conduct, but

whether the decisionmaker “honestly believed” the reasons

given for the termination. Villiarimo v. Aloha Island

Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (emphasis

and citation omitted). Given Cross’s own admission and

the police’s finding her at fault, CCCTA had legitimate

reasons to believe she was at fault for the accident, and

Cross presents no evidence that CCCTA did not honestly

believe its proffered reasons.

Because Cross has not shown that CCCTA’s legitimate,

nondiscriminatory reasons for her termination were

pretextual, she has failed to meet her burden on her

retaliation claim and CCCTA is entitled to summary

judgment.

Hostile Work Environment

To make out a prima facie hostile work environment

claim under Title VII and FEHA, Cross must prove that:

(1) she was subjected to verbal or physical conduct of a

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

and (3) that the conduct was sufficiently severe or

pervasive to alter the conditions of her employment

and create an abusive work environment.” Vasquez, 349

F.3d at 642; Lyle v. Warner Bros. Television Prods., 38

Cal. 4th 264, 279 (2006). “Courts determine whether an

26a

Appendix B

environment is sufficiently hostile or abusive by looking

at all the circumstances, including 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.” Arizona ex rel. Horne v.

Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016) (internal

quotation marks and citation omitted).

Cross bases her harassment claim on three incidents.

First, on the stairs going to the parking lot, supervisor

Morris came running behind her and said that she could

not “wear that,” referring to Cross’s hijab. Cross Dep. at

175:14-178:23; Cross Decl.¶ 21. Second, another employee

remarked that he would like to wear his hat for religious

purposes. Cross Dep. at 185:2-5; Cross Decl. ¶ 32. Third,

supervisor Carroll told her she could not wear “that thing,”

referring to Cross’s hijab. Cross Dep. at 187:16-188:3;

Cross Decl. ¶ 41. This conduct, even viewed in the light

most favorable to Cross, is not severe or pervasive enough

to constitute a hostile work environment. In Vasquez, the

plaintiff’s colleague told him he had “‘a typical Hispanic

macho attitude’ and that he should consider transferring

because ‘Hispanics do good in the field.’” 349 F.3d at

643. The same colleague also yelled at him in front of

the youth they supervised and made continual, false

complaints about the plaintiff to their supervisor. Id. The

Ninth Circuit found that these events were not severe or

pervasive enough to constitute a hostile work environment.

Id. The incidents here are less severe and pervasive than

in Vazquez—Cross relies on three incidents in her yearlong employment. Accordingly, CCCTA is entitled to

27a

Appendix B

summary judgment on Cross’s hostile work environment

claim.4

CONCLUSION

For the foregoing reasons, CCCTA’s motion for

summary judgment is granted. The Clerk shall enter

judgment and close the case.

IT IS SO ORDERED.

Dated: September 3, 2024

/s/ Jon S. Tigar

JON S. TIGAR

United States District Judge

4. Cross also contends that CCCTA engaged in quid pro quo religious

harassment. ECF No. 14-15. However, the Ninth Circuit has not recognized

a claim for quid pro quo religious harassment. See Quinones v. Donahoe, No.

1:13-cv-1553, 2014 WL 2524429, at *3 (E.D. Cal. June 4, 2014). Regardless,

Cross has not presented sufficient evidence of quid pro quo harassment. See

Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1175-76 (9th Cir. 2003) (finding

plaintiff did not present sufficient evidence of quid pro quo harassment when

she produced no evidence connecting any discussion of her job duties with

Wiggins’s requests that she engage in sexual acts with him.)

28a

Appendix

C UNITED STATES

APPENDIX C — ORDER

OF THE

COURT OF APPEALS FOR THE NINTH CIRCUIT,

FILED FEBRUARY 20, 2026

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 24-6068

D.C. No. 4:21-cv-01312-JST

Northern District of California, Oakland

SHANNON CROSS,

Plaintiff-Appellant,

CENTRAL CONTRA COSTA TRANSIT

AUTHORITY,

Defendant-Appellee.

Filed February 20, 2026

ORDER

Before: NGUYEN and BENNETT, Circuit Judges, and

MATSUMOTO, District Judge.*

The panel has voted to deny the petition for panel

rehearing.

* The Honorable Kiyo A. Matsumoto, United States District

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

29a

Appendix C

The panel has voted to deny the petition for rehearing

en banc, and Judge Matsumoto has so recommended. The

full court has been advised of the petition for rehearing

en banc, and no judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 40.

The petition for panel rehearing and rehearing en

banc, Dkt. No. 61, is DENIED.

30a

Appendix D

APPENDIX D — DECLARATION

OF SHANNON

CROSS IN THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

CALIFORNIA, FILED JUNE 14, 2024

Jeremy L. Friedman, CA Bar No. 142659

LAW OFFICE OF JEREMY L. FRIEDMAN

2801 Sylhowe Road. Oakland, Ca. 94610

Tel: (510) 530-9060

Fax: (510) 530-9087

E-mail: jlfried@comcast.net

Alan J. Reinach, Esq. State Bar No. 196899

Jonathon S. Cherne, State Bar No. 281548

CHURCH STATE COUNCIL

2686 Townsgate Road, Westlake Village, CA 91359

Tel: (805) 413-7398

Fax: (805)497-3828

E-mail: ajreinach@churchstate.org

Attorneys for Plaintiff Shannon Cross

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Case No. 21-cv-01312-JST

SHANNON CROSS,

Plaintiff,

CENTRAL CONTRA COSTA TRANSIT AUTHORITY,

Defendant.

31a

Appendix D

DECLARATION OF SHANNON CROSS

I, Shannon Cross, declare under penalty of perjury that

the following is true and correct:

I began work for CCCTA on July 23, 2018. I am

an African American Muslim woman who grew

up in Oakland, California. Oakland is a very

diverse community, and I never experienced any

discrimination or racism until I came to work for

CCCTA.

As a Muslim woman, wearing the Hijab is a very

important part of my faith and practice. My faith

teaches me to cover up my natural hair. The Hijab is

also a very public expression of my faith, and a witness

to Allah.

When I began work at CCCTA, I attended a period

of training.

During my training, we worked through the employee

handbook and were trained on company policies.

One of the policies had to do with uniform and the

prohibition on wearing hats. [Plaintiff’s Exhibits are

compiled in volumes, and referenced by page number.

Vol. A, p. 144.]

One of operators in the class, Terrice Hampton, had

a black wrap on her head, and was told she could not

wear the headcovering. My recollection is that she

had to go home that day at lunch, and remove her

headcovering, but she returned to class.

32a

Appendix D

Seeing the treatment Hampton received, I was

intimidated and fearful of asking to wear my Hijab.

The instructor made it very clear we could be

terminated for wearing something on our head.

As a result, I was scared that if I asked to wear my

Hijab during probation, I would never pass probation.

So instead, I compromised on my belief, and instead

of wearing the Hijab as a public witness to my faith,

I bought a wig to cover my natural hair.

The employee handbook had not made any mention

of a policy about providing religious accommodation,

nor did it reference that accommodation forms might

be available.

When the training covered the topic of harassment,

the main thing covered was sexual harassment. No

mention was made of racial or religious harassment.

10. In reviewing the employee handbook during this

litigation, I was reminded there is no policy about

religious accommodation, nor is there any mention

of an accommodation form.

11. When I passed probation, Miguel Duenas and

Aline Carroll issued me a memo, and stated: “Your

performance during the probationary period was

found to be outstanding.” Plaintiff’s Exhibits, Volume

A, p. 189.] [Plaintiff’s exhibits are compiled into three

volumes. Volume A comprises documents that are not

filed under seal, Volume B are those documents filed

33a

Appendix D

under seal, and Volume C comprises videos supplied

to the court on a flash drive, and manually filed.]

12. The evaluator’s comment stated: “Operator Shannon

is very professional at her job. She is always asking

questions and wants to do well. She was exceptional

behind the wheel and has a great attitude towards

her job. Great job Shannon!” [Vol A, p. 193.]

13. I completed probation on January 23, 2019. [Vol

A. p. 189.] That same week, I asked one of he

supervisors, Preston Ennis, whether I could wear

my traditional Muslim head covering. We had a brief

discussion during which I explained to him what the

head covering was. He was on duty at the County

Connection office where I would clock in and out of

my shifts.

14. Ennis said he didn’t know and would have to look into

it and get back to me. He never got back to me before

he left the company, nor did anyone else.

15. Clearly, because there was no w ritten policy

about religious accommodation, and no training

of supervisors, Ennis lacked any information or

understanding as to whether I would be permitted

to wear my Hijab.

16. Since Ennis didn’t know about a policy, and I didn’t

hear back, I became concerned that I might not be

permitted to wear my Hijab.

34a

Appendix D

17. When I didn’t hear back, I contacted Kristina

Martinez in human resources, and asked her the

same question, about whether I would be permitted

to wear my hijab. As I had done with Ennis, I had a

brief conversation with Martinez and explained to her

about why my Hijab was important to me.

18. Even though Martinez is in human resources, like

Ennis, she did not know whether I would be permitted

to wear my Hijab. She had no policy to consult. She

told me she would have to get back to me.

19. She gave me a generic accommodation form that made

no mention of religion on it and had me fill it out. [Vol.

A, p. 194.] I wrote that I was “asking permission to

wear my hijab this headpiece is worn for the purpose

of my religion as a Muslim.”

20. I received written permission to wear my Hijab, but

the permission made no mention about any company

policy. [Vol A, p. 274.1] After my initial request to

Martinez, no one reached out to me to discuss my

request further; no one assured me CCCTA stood

by my religious freedom or my right to religious

expression. Nor did anyone ever tell me that my

supervisors had been informed I had permission to

wear it.

21. I found out that my supervisors did know when, about

a week after receiving written permission, I clocked

1. The document is an image and could not be bate numbered.

It is the last page of Volume A.

35a

Appendix D

out at the window where supervisor Sophia Morris

was on duty. I left and climbed up the stairs to the

parking lot. As I reached the top of the stairs, I saw

Morris running after me and chasing me down. She

called out to me that you can’t wear that, referring

to my hijab.

22. When I saw her chasing after me, I became afraid.

I had just been at the window inside with her a few

moments before, and if she had anything to say to

me, she could have had the conversation with me

in a respectful and professional manner inside the

building. Instead, she ran after me and chased me

down. It immediately startled me and made me afraid.

23. Morris also made me feel she was attacking me and

my religion, even though I had permission to wear

the hijab.

24. I told Morris I had permission to wear the hijab, but

she didn’t let up on me. Instead, she changed her story,

and admitted she knew I had permission, but having

been put on the defensive, she now made up something

about the hijab being the wrong color. Then she said:

“Well, I’m telling you you can’t wear that.”

25. The hijab was maroon. It matched my uniform. It was

exactly the color that was permitted. When Morris

argued with me about the color, I was offended and

disgusted that she would stoop to such falsehoods in

attacking my religious practice.

36a

Appendix D

26. Morris said plainly she wanted me to stop wearing my

hijab. I became very uncomfortable and self conscious

about wearing it at work. It didn’t seem like I could

continue working there if kept wearing my Hijab.

27. Before this happened, I felt good about going to work,

and that I could have a career there.

28. But this incident completely changed everything. I no

longer felt safe going to work, and I knew I did not

fit in. I experienced anxiety every day I had to go to

work. I felt my face flushed and hot, a tightness in my

chest, and actual terror. I was afraid of what might

happen next, of being physically attacked. I began to

doubt I had made a good decision going to work for

the company.

29. The person I mainly confided in was my mom, Cheryl

Edwards. I told her about how I felt harassed, and

how much fear and anxiety it caused me. I also told

her I didn’t feel like I belonged there, and wondered

how long I would last.

30. Not long after, I was in the breakroom, and Morris

came in and informed everyone she was going to begin

enforcing the policy forbidding hats. It was clear to

me and everyone else I was the reason they started

enforcing the policy -- because of my Hijab. I was

being singled out. I would be the only one permitted

to wear something on my head.

31. Up until this time, bus operators wore hats all the

time. And they would wear all different kinds of hats.

37a

Appendix D

32. Predictably, Morris’ announcement caused resentment

and hostility. One of the bus operators responded in a

mocking and humiliating tone, and said, while looking

directly at me, “now I’m going to wear my hat for

religious purposes.”

33. Morris did not chastise him for his offensive and

discriminatory remark but added a similarly insulting

comment of her own. I don’t recall her exact words, but

I do remember just how humiliated and embarrassed

I felt. The entire experience was very painful.

34. The very next day, I reported to Kristina Martinez

about both these incidents with Morris, and told her

how offensive they were, and how upset I was.

35. Martinez assured me she would remind Morris I was

permitted to wear my Hijab. But she did not follow

the policy which required her to have the company

initiate a harassment investigation, take appropriate

action, and report the results to me. [Vol A, p. 23.]

36. I never heard about any such investigation.

37. As I read the policy, if I am harassed by a supervisor,

I am permitted to bring my complaint directly to a

manager: “to the Affirmative Action Officer or to any

other manager.” I did this.

38. The policy says I should let them know that I “find

the behavior offensive.” I did way more than simply

tell Martinez I was offended. I told her how upset,

embarrassed and humiliated I was by the harassment.

38a

Appendix D

39. It seemed to me that the employer did not care about

my being harassed. CCCTA didn’t take my complaint

of harassment seriously.

40. After this, I was convinced the company would not

protect me from further harassment. I continued to

go to work every day with anxiety and fear about what

would happen next.

41. It didn’t take long before I was harassed again. On

a Friday in April, I was wearing a black hijab with

subtle designs portraying religious symbols on it.

Many other bus drivers would wear hats with all kinds

of symbols – sports teams, etc. I was at the window in

the County Connection office when supervisor Aline

Carroll gave me a look of disgust and told me I could

not wear “that thing” on my head.

42. In her declaration, Carroll says she told me I could

continue to wear my Hijab. This is untrue. To the

contrary, she told me I could not wear it.

43. That “thing” as she put it, is a sacred garment, and

worthy of respect. Carroll’s comment was extremely

disrespectful and hostile. I felt very angry when she

said it, and also much shame. I had seen that Aline

and Morris were good friends, and I knew that things

were getting worse for me, with these two supervisors

harassing me on account of my hijab.

44. This was the second time a supervisor told me not

to wear my Hijab, even though I was complying with

39a

Appendix D

policy. The only conclusion I could draw was that

despite having written permission to wear it, CCCTA

really wanted me to remove it. So I understood

clearly that if I did not remove it, I was likely to face

consequences.

45. According to the company’s progressive discipline

policy, the first step in discipline is a verbal warning.

Both times when supervisors Morris and Aline

confronted me about my Hijab in a harassing manner,

I perceived they were threatening me with discipline

if I continued to wear it. I felt they were pressuring

me to remove my Hijab and conform to what everyone

else was doing.

46. I went and spoke to Lisa Rettig, head of human

resources. I told her what Carroll had said, how

offensive it was, and how upset it made me. I also told

her about the prior incidents with Morris and what

happened in the breakroom. All she could say is “some

people are stupid.” She did not initiate an investigation,

retain an outside workplace investigator, or follow up

with me in any way.

47. I was not reassured. If anything, I was left feeling

that H.R. did not have my back, and that I was at the

mercy of the supervisors who were clearly not happy

I was wearing my Hijab. To my knowledge, I was the

only Muslim woman working there – I did not see any

other women wearing Hijab.

48. About six weeks later, on May 30, 2019, I had an

accident wherein a bicycle collided with the bus. The

40a

Appendix D

bicyclist was at the corner, with his foot on the curb

as I approached. The bicyclist did not signal that he

was intending to enter the lane, and by the time he

did so, I was already in the lane. As I was passing

him, the bicyclist fell into the rear of the bus.

49. I called in the accident as I had been taught to do, and

reported what I believed occurred, which is that the

bicycle hit the bus, not the other way around. I was

very shaken up.

50. Just before the accident, I called in to report a problem

with the alarm. After the accident, I reported that

the alarm going off distracted me. In the notice of

termination, CCCTA does not dispute my statement

that the alarm had been going off. Further, when I got

to the BART station, one of the bus drivers, Darrell,

told me not to turn off the bus because the alarm was

going off. I called in from the BART station and was

told to complete the final loop and bring the bus in.

51. I have since watched the video several times, and the

alarm is clearly audible.

52. After bringing the bus back, I drove another shift,

and didn’t return to the yard until 7:00 p.m. When

I arrived, Aline Carroll called me into her office,

and issued me a notice of termination, just like that.

[Vol.A, p. 194-196.] She had a pleased and smug look on

her face. She is the same supervisor who had referred

to my Hijab as “that thing” and told me I could not

wear it only six weeks earlier.

41a

Appendix D

53. No one questioned me about what happened. I was

just fired, on the spot.

54. I was in shock.

55. I was placed on suspension immediately.

56. I was issued a notice that CCCTA considered the

incident “preventable” dated June 5th, but my

termination was issued even before CCCTA had

formally made that determination. [Dkt. 56-1 p. 134.]

57. Because of the tremendous stress caused by the

accident and my termination, my doctor put me on

stress leave, extending my time off work.

58. In anticipation of my Skelly hearing, I submitted a

written statement complaining about discrimination,

stating in part: “As an over 40 African American

woman who is a practicing Muslim that openly wears

a Hijab, I feel that I am being scrutinized differently

than those who don’t outwardly present their religion.”

[Vol. A, p.197-198.]

59. I also noted that my driving record was clean, with no

accidents or incidents. (I did have a tardy for being 9

minutes late.) No one had criticized my driving.

60. My Skelly hearing was on Friday, June 7th. Friday is

free dress day. The union president told me to come in

uniform. I asked her why? Was I going to be returned

to work? She said no. I said I would have the uniform

42a

Appendix D

in the car, but I was going to Juma prayer after the

Skelly.

61. Even the union president knew the Skelly hearing was

pre determined. She knew I would not be returned

to work. I was not even permitted to view the video

of the bus accident prior to the Skelly.

62. When I finally got the police report, I found out that

CHP did not even issue me a point on my driving

record. My understanding is that if there were

damages in excess of $750 they would have been

required to issue me a point on my license. Of course,

it could have been serious, and I’m very grateful Mr.

Mckenzie was not injured.

63. I received my termination letter dated June 13, 2019.

[Vol A. p. 199.] It referenced the police report that

was “issued” on June 19th. Hmm. Seems the letter

was written before CCCTA had the police report, but

falsely claimed the police report as support for my

termination. Ibid.

64. The union filed a grievance on my behalf on June

20, 2019. [Dkt 56-1 p. 144.] The union said CCCTA

failed to pay me for the period from June 10 to June

13 while I was on stress leave, and before the date of

my termination, in violation of the union agreement

(“MOU”).

65. This was not the only contract violation. As the union

stated in the grievance, CCCTA failed to issue me a

43a

Appendix D

“Pending Disciplinary Action Letter” as required by

Article 52 of the contract. [Dkt. 56-1, p. 144.]

66. According to the grievance, [Dkt. 56-1, p. 144.]

CCCTA also violated Article 62 of the agreement:

“The Authority will not, however, initiate the review

of electronic media solely for the purpose of looking

for employee misconduct.” [Vol A, p. 264.] 67. CCCTA

reviewed countless hours of video to search for

additional evidence that I had engaged in misconduct,

allegedly discovering rolling stops. They used this

after the fact, in violation of the union contract, to

justify their decision not to issue me a last chance

agreement.

68. Rolling through stop signs at the Concord BART

station was a common occurrence, and I was angry I

was being singled out for this. Sometime later, I spent

a morning at the Concord BART station watching

bus after bus roll through those very same stop signs

without coming to a complete stop. I never heard

of anyone being disciplined for rolling stops. It was

plain they were just trying to justify the decision

to terminate me, which they made even before I

returned to the yard.

69. In anticipation of the grievance proceedings, the union

advised me to submit a letter admitting fault, so I did.

That was supposed to be help me avoid termination.

Instead, it backfired, and is now being used against

me as though I have already conceded my fault.

44a

Appendix D

70. At the grievance hearing, I argued that my accident

did not warrant more severe treatment than Ronnette

Brown’s – she actually ran over a teenage girl’s leg

and her bicycle, putting her in the hospital! CCCTA

first found her accident to be preventable, as they did

mine, but only gave her a suspension and retraining.

71. At both the Skelly hearing and the grievance hearing,

it was very clear to me that CCCTA had already

made up their mind to terminate me, and that they

weren’t interested in the facts. I was represented at

the grievance by the union president, Michelle Gray.

She told me that at the last step of the grievance,

CCCTA would offer a “last chance” agreement. But

even though I repeatedly asked for a last chance

agreement, CCCTA refused to make the offer.

72. During training, we were trained on how to relate

to bicyclists. Our training said to “pass ‘em up, pick

‘em up.” That meant to pass the bicyclist, and then

pick them up in the mirror. But this had to do with

bicyclists that were actually in the lane and riding.

There was no discussion about any procedure for

dealing with bicyclists who were stopped at a red light,

at the curb. Nor was there any instruction to slow to

a crawl or stop for bikes that were not moving.

Sworn to under penalty of perjury this 14th day of June,

2024

/s/ Shannon Cross

By: Shannon Cross

45a

APPENDIX E — Appendix

DECLARATION

OF DAVID

BRINTON IN THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

CALIFORNIA, FILED JUNE 14, 2024

Jeremy L. Friedman, CA Bar No. 142659

LAW OFFICE OF JEREMY L. FRIEDMAN

2801 Sylhowe Road

Oakland, Ca. 94610

Tel: (510) 530-9060

Fax: (510) 530-9087

E-mail: jlfried@comcast.net

Alan J. Reinach, Esq. State Bar No. 196899

Jonathon S. Cherne, State Bar No. 281548

CHURCH STATE COUNCIL

2686 Townsgate Road,

Westlake Village, CA 91359

805.413-7398

Fax: 805.497-3828

E-mail: ajreinach@churchstate.org

Attorneys for plaintiff Shannon Cross

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Case No. 21-cv-01312-JST

SHANNON CROSS,

Plaintiff,

vs.

CENTRAL CONTRA COSTA TRANSIT AUTHORITY,

Defendant.

46a

Appendix E

Filed June 14, 2024

DECLARATION OF DAVID BRINTON IN

OPPOSITION TO MOTION FOR SUMMARY

JUDGMENT

I, David Brinton, declare and state:

1. I have been retained by plaintiff’s counsel to

offer an opinion regarding bicycle-related actions of Ian

Mackenzie, and of Lili Smith, two individuals involved

in separate collisions with Central Contra Costa Transit

Authority (“CCCTA”) busses, operated by Shannon Cross

and Ronette Brown, respectively. Attached hereto as

Exhibit A is a true and accurate copy of the report and

exhibits I prepared for this case.

2. The facts stated in my report and in this declaration

are true and correct, based on my personal knowledge,

and the opinions expressed there and herein are my true

opinions based on my experience as Licensed Level- Coach

and Certified Bicyclist Instructor. teaching safe riding

practices, traffic awareness, rider predictability, and

other handling skills on the road. If called as a witness to

this action, I would and could testify competently to the

matters stated herein and in my attached report.

3. A true and accurate copy of my Curriculum

Vitae is attached as the first exhibit to my report. In

addition to my license as a coach and certification as an

instructor, since 1984 I have privately coached safety and

bike handling skills to more than 2,000 persons, from

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beginners through professional bicyclists, from ages two

to 85 years old. Throughout my coaching career, I have

conducted hundreds of group rides with support vehicles,

bicycle safety, bike handling, and crash awareness

clinics and workshops. I have ridden over 300,000 miles,

competed in the Olympic Games, earned 4 Master World

Championships, and was a Hollywood stuntman for 17

years specializing in bicycle crashes, evasive maneuvering,

and jumping.

4. In preparation for my opinion, I reviewed videos

from the on-bus cameras and collision reports produced

in the litigation, for both incidents: the one between Cross

and Mackenzie; and the one between Brown and Smith.

My opinions are based upon my review of those materials,

my subsequent analysis and my bicycling experience.

5. Mackenzie’s collision with the side of the bus

operated by Cross was the result of the bicyclist’s own

failure to take reasonable measures to ensure that he was

riding in a safe manner on the public streets.

a. Mackenzie did not take control of the #3

eastbound lane on Clayton road where the collision

occurred. The bicyclist was stopped at the gutter with a

foot on the curb, and he had released whatever control he

might have had of the lane to a white SUV that passed

him on the left before it turned right onto Ellis street. It

is common practice for bicyclists to position themselves

towards the center or slightly right of center of the lane

if they wish to message other drivers that they intend to

proceed at the light in control of the lane. Mackenzie’s

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positioning was likely to indicate to other drivers that it

was safe to pass by as he was stopped off the roadway in

the gutter.

b. Mackenzie did not look back to check if traffic

was clear, or signal an intent to proceed from a stopped

position before entering the roadway from the gutter. It

is the bicyclist’s responsibility to take these actions so

he does not endanger himself or others. (Exhibits DB-03

and DB-04.)

c. Mackenzie’s actions could have confused

other drivers as to his intent. By remaining in one place

in the gutter for two to three seconds after the light had

turned green, he did not indicate an intent to proceed

until, what appears to be, less than one-second before the

bus passed him, when he kicked off the curb and started

to proceed. (Report Exhs. DB-04 and DB-05.)

d. Had he looked over his shoulder to his left

before proceeding, Mackenzie likely would have realized

that the bus was in traffic on the lane, and he would have

waited for it to pass or ride to the right and entered into

the crosswalk to proceed forward. Instead, he drifted left

towards traffic, and into the line of traffic. When he saw

the bus passing him, Mackenzie abruptly turned his front

wheel to the right, in attempt to turn away from the bus

without first leaning the bike to the right. This oversight

on his part directly led to him falling into the bus. (Report

Exhs. DB-07 and DB-08).

6. In contrast with the collision of Mackenzie, the

collision involving Smith and the bus driven by Brown had

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far less to do with the actions of the bicyclist. When Smith

entered into the cross road and proceeded along the right

side of the crosswalk (away from the traffic and the lane

of the bus she had just disembarked), the light was still

yellow. Upon entering, Smith looked ahead to where she

was going, and she could see pedestrians still walking in

the crosswalk ahead of her. She thus appeared to believe

that it was safe to cross.

7. Unlike Mackenzie, who drifted into the bus’s

lane, Smith was in the crosswalk riding alongside the bus

when the bus driven by Brown began to turn to the right.

At the moment that the bicyclist recognized the bus was

beginning to turn into her, she was roughly six feet into the

crosswalk and almost immediately came to a complete stop

with her bicycle leaned right and her front wheel turned

to the right. The trailing end of the bus continued to come

inward, reducing the gap between it and the stationary

bicycle, until the bus collided with Smith, and partially

ran over Smith and the bicycle.

8. Smith’s stepping onto the sidewalk after

disembarking the bus was safe and reasonable. Smith’s

entering into the crosswalk through the left side of the

ADA transition after passing a pedestrian was the safe

and reasonable path to follow. Entering an intersection

while the light was still yellow is a common and reasonably

expected practice for bicyclists. Had the collision not

occurred, it is reasonable to believe that Smith would

have caught up, or be reasonably close, to the crossing

pedestrians in front of her. Smith’s actions were thoughtful,

reasonable, showed a high level of awareness, and what

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many other bicyclists would have done in that situation.

If the bus operator had first looked to see if anyone was

in the crosswalk, the incident would not have happened.

I declare under penalty of perjury under the laws of

the United States and California that the foregoing is true

and correct. Executed this 14th day of June, 2024.

/s/ David J. Brinton

David J. Brinton

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