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 2019-09

Gregg Bosnak v. City & County of S.F. ( 2019 )


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  •                                                                            FILED
NOT FOR PUBLICATION
SEP 09 2019
UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGG S. BOSNAK,                                 No.   17-17321
Plaintiff-Appellant,               D.C. No. 3:14-cv-01429-MEJ
v.
MEMORANDUM*
CITY AND COUNTY OF SAN
FRANCISCO; LAGUNA HONDA
HOSPITAL AND REHABILITATION
CENTER; EDWARD SHIELS; STEVEN
KONEFFKLATT,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding
Argued and Submitted February 13, 2019
San Francisco, California
Before: SCHROEDER, O’SCANNLAIN, and RAWLINSON, Circuit Judges.
Gregg S. Bosnak (Bosnak) appeals from the district court’s summary
judgment in favor of Defendants-Appellees on his claims alleging racial and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
associational discrimination and retaliation, and denial of equal protection.1 We
review de novo. See Hardie v. Nat’l Collegiate Athletic Ass’n,
    876 F.3d 312
    , 318
(9th Cir. 2017), as amended.
The district court properly granted summary judgment on Bosnak’s claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), 42 U.S.C.
§ 1981, and the California Fair Employment and Housing Act (FEHA), California
Government Code § 12940, as Bosnak failed to make a sufficient showing of
pretext2 to raise a genuine issue of material fact regarding the existence of
discrimination or retaliation. See Anthoine v. N. Cent. Ctys. Consortium,
    605 F.3d 740
    , 753 (9th Cir. 2010) (requiring “specific and substantial” evidence to raise a
triable issue of fact that the non-discriminatory or non-retaliatory reasons offered
by the employer were pretextual). The record supports the district court’s
conclusion that the adverse employment actions stemmed from Bosnak’s
“unacceptable behavior” rather than from his race.
1
At oral argument, Bosnak abandoned the appeal of his due process claims.
2
See Campbell v. Hawaii Dep’t of Educ.,
    892 F.3d 1005
    , 1012 (9th Cir.
2018) (describing the burden-shifting framework for Title VII discrimination cases
as articulated in McDonnell Douglas v. Green,
    411 U.S. 792
    , 802 (1973));
Santillan v. USA Waste of California, Inc.,
    853 F.3d 1035
    , 1043 n.7 (9th Cir. 2017)
(applying the McDonnell Douglas framework to claims brought under the FEHA);
Surrell v. Cal. Water Serv. Co.,
    518 F.3d 1097
    , 1103, 1105-06 (9th Cir. 2008)
(applying the McDonnell Douglas framework to § 1981 claims).
2
The district court properly granted summary judgment on Bosnak’s equal
protection claim under 42 U.S.C. § 1983. See
    id. at 753-54. 
    To establish a § 1983
equal protection violation, a plaintiff must show that the defendant, acting under
color of state law, discriminated against him as a member of an identifiable class,
“and that the discrimination was intentional.” FDIC v. Henderson,
    940 F.2d 465
    ,
471 (9th Cir. 1991) (citations omitted). Bosnak failed to raise a triable issue of fact
that the City and County of San Francisco discriminated against him as a member
of an identifiable class. See
    Anthoine, 605 F.3d at 753-54 
    (applying the
McDonnell-Douglas framework to an equal protection claim); see also
    FDIC, 940 F.2d at 472 
    n.14 (noting “that a plaintiff who fails to establish intentional
discrimination for purposes of Title VII also fails to establish intentional
discrimination for purposes of § 1983”) (citations and alteration omitted).
Bosnak’s strongest assertion of intentional discrimination was the fact that
“there were no or very few Caucasians working in the department and a very high
percentage of . . . persons of Asian descent.” But that assertion fails to raise a
material issue of fact regarding intentional discrimination. See Palmer v. United
States,
    794 F.2d 534
    , 539 (9th Cir. 1986) (explaining that employment numbers
“standing alone” are insufficient to establish intentional discrimination).
3
Bosnak’s contentions regarding municipal liability fail due to the absence of
any acts of discrimination. See Yousefian v. City of Glendale,
    779 F.3d 1010
    , 1016
(9th Cir. 2015) (concluding that because plaintiff’s § 1983 claims failed, “his
municipal liability claim also necessarily fails”).
AFFIRMED.
4