Colbern v. Selig ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD ALAN MORAN; ERNEST 
FAZIO,
Plaintiffs,
and
MIKE COLBERN, individually and on
behalf of all similarly situated
retired Major League Baseball
Players,
Plaintiff-Appellant,
v.
ALLAN H. SELIG, aka “BUD” Selig,
as Commissioner of Major League No. 04-55647

Baseball; NEW YORK YANKEES D.C. No.
BASEBALL CLUB, an entity of CV-03-07424-R
unknown form; ATLANTA BRAVES,
INC., a Delaware Corporation; OPINION
DETROIT TIGERS, INC., a Michigan
Corporation; ST. LOUIS CARDINAL
BASEBALL CLUB, an entity of
unknown form; BOSTON RED SOX
BASEBALL CLUB, an entity of
unknown form; FLORIDA MARLINS
BASEBALL CLUB, an entity of
unknown form; ANAHEIM ANGELS
LP, a California limited
partnership; ARIZONA
DIAMONDBACKS BASEBALL CLUB,
an entity of unknown form;

5253
5254 COLBERN v. SELIG
BALTIMORE ORIOLES, INC., a 
Maryland Corporation; CHICAGO
CUBS, INC., an Illinois Corporation;
CHICAGO WHITE SOX BASEBALL
CLUB, an entity of unknown form;
CINCINNATI REDS BASEBALL CLUB,
an entity of unknown form;
CLEVELAND INDIANS BASEBALL
COMPANY, INC., an Ohio
Corporation; COLORADO ROCKIES
BASEBALL CLUB, an entity of
unknown form; HOUSTON ASTROS
BASEBALL CLUB, an entity of
unknown form; KANSAS CITY
ROYALS BASEBALL CORPORATION, a
Missouri Corporation; LOS
ANGELES DODGERS, INC., a 
Delaware Corporation; MILWAUKEE
BREWERS BASEBALL CLUB, INC., a
Wisconsin Corporation; MINNESOTA
TWINS BASEBALL CLUB, an entity of
unknown form; MONTREAL EXPOS
BASEBALL CLUB, an entity of
unknown form; NEW YORK METS
BASEBALL CLUB, an entity of
unknown form; THE PHILLIES, a
Pennsylvania limited Partnership;
PITTSBURGH PIRATES, INC., a
Pennsylvania Corporation; SAN
DIEGO PADRES BASEBALL CLUB, an
entity of unknown form; SAN
FRANCISCO GIANTS ENTERPRISES

COLBERN v. SELIG 5255
LLC, a Delaware limited liability 
company; SEATTLE MARINERS
BASEBALL CLUB, an entity of
unknown form; TAMPA BAY DEVIL
RAYS BASEBALL CLUB, an entity of
unknown form; TEXAS RANGERS
BASEBALL CLUB, an entity of 
unknown form; OAKLAND
ATHLETICS LIMITED PARTNERSHIP, a
Delaware Limited Partnership;
TORONTO BLUE JAYS BASEBALL
CLUB, an entity of unknown form,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
December 6, 2005—Pasadena, California
Filed May 9, 2006
Before: Stephen Reinhardt and Johnnie B. Rawlinson,
Circuit Judges, and Jeremy D. Fogel,* District Judge.
Opinion by Judge Reinhardt
*The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
COLBERN v. SELIG 5259
COUNSEL
Gerald M. Serlin (argued), Douglas G. Benedon, Benedon &
Serlin, Woodland Hills, California; John R. DaCorsi, Jason L.
Rumsey, DaCorsi & Placensio, Woodland Hills, California,
for the plaintiffs-appellants.
Howard Ganz (argued), Lary Alan Rapaport, Proskauer Rose
LLP, Los Angeles, California, for the defendants-appellees.
OPINION
REINHARDT, Circuit Judge:
Appellants seek reversal of the district court’s grant of
summary judgment on their Title VII and battery claims. We
conclude that they have failed to make a prima facie showing
5260 COLBERN v. SELIG
of discrimination under Title VII, and to offer evidence of the
commission of a battery sufficient to survive summary judg-
ment. With respect to the Title VII claim, we hold in the alter-
native that appellees had a legitimate non-discriminatory
reason for the actions they took and that such reason was non-
pretextual. Accordingly, we affirm.
I.
In October 2003, Mike Colbern, a retired Major League
Baseball player,1 brought a class action on behalf of himself
and other retired baseball players against Major League Base-
ball (“MLB”)2 claiming, in pertinent part, that MLB had (1)
violated Title VII by excluding them from medical and sup-
plemental income plans devised by MLB for former Negro
League players, and (2) committed battery by subjecting them
to a dangerous regimen of cortisone shots and other drugs
without their informed consent. Appellants are virtually all Cau-
casian3 former MLB players who played in the Major Leagues
for less than four years between 1947 and 1979 and were
accordingly denied MLB pension and medical benefits.4
Until 1947, when Jackie Robinson broke the color barrier
in the Major Leagues, African-Americans were not allowed to
1
Colbern played for the Chicago White Sox in 1978 and 1979.
2
MLB commissioner Allan “Bud” Selig and all existing MLB teams
were also named as defendants in the suit. References to “MLB” should
be understood to encompass the league as a whole and its various teams.
3
Although a few of the class members are Latino, according to the
Plaintiffs-Appellants’ complaint, “[t]he overwhelming majority (99%) of
members of the Class are Caucasian . . . .”
4
Between 1947 and 1979, MLB players became vested in their medical
and pension plans after four or five years of service in MLB. Some plain-
tiffs missed the vesting requirement by a matter of days. After a strike by
MLB players in 1981, the vesting requirement for MLB medical benefits
was reduced to one day; the vesting requirement for an MLB pension was
reduced to 43 days. These vesting requirements were not extended to play-
ers who had ended their careers prior to 1980.
COLBERN v. SELIG 5261
play Major League Baseball and could play only in the so-
called “Negro Leagues,” associations of professional baseball
clubs composed exclusively of black players. These clubs ter-
minated all operations in the early 1960s as a result of the
absorption of African-Americans into MLB, and the Negro
Leagues ceased to exist. With the coming of racial integration
to baseball, the market for a separate league for minority play-
ers evaporated. Having lost their economic base, the former
Negro Leagues were unable to offer any pension or medical
benefits to their former players. In the 1990s, seeking to make
partial amends for its exclusion of African-Americans prior to
1947, MLB voluntarily decided to provide certain benefits to
former Negro League players.5 In 1993, MLB created a plan
that provided medical coverage to former Negro League play-
ers (“Negro League Medical Plan”). In 1997, it adopted a sup-
plemental income plan that provided an annual payment of
$10,000 to eligible players (“Negro League Supplemental
Income Plan”). Individuals who had played in the Negro
Leagues prior to 1948, i.e., prior to African-Americans being
allowed in the Major Leagues, were eligible for such payments.6
(For ease of reference, these two plans are referred to collec-
tively as the “Negro League Plans.”) Some of the eligible
players had subsequently played in the Major Leagues for a
period of time too short to qualify them for MLB’s regular
medical and pension plans and some had never played in the
Major Leagues at all.
On August 4, 2003, appellants filed a complaint with the
Equal Employment Opportunity Commission (EEOC) charg-
ing that, in violation of Title VII, MLB had arbitrarily, inten-
5
There is no suggestion that MLB and the Negro Leagues were con-
nected in any way, legally or otherwise.
6
Also in 1997, MLB created a similar pension plan for former MLB
players whose careers had ended prior to 1947 — i.e., before pensions
were instituted in MLB. By virtue of the fact that African-Americans were
excluded from MLB prior to 1947, no African-American could benefit
from this plan.
5262 COLBERN v. SELIG
tionally and unlawfully excluded them from the Negro
League Plans on the basis of their race. The EEOC issued
appellants a right-to-sue letter on August 23, 2003, and appel-
lants brought suit in federal district court on October 16,
2003, joining the Title VII charge with intentional battery,
negligence, § 1981 and § 1985 claims. The intentional battery
and negligence claims were wholly unrelated to any racial
question but, instead, contained allegations that MLB team
doctors and trainers had injected appellants with multiple cor-
tisone shots and administered other drugs to them over the
course of their careers and had deliberately failed to inform
them of the potential risks associated with such treatment.
In response to appellants’ complaint, the defendants filed a
motion to dismiss and/or for summary judgment on January
30, 2004. On March 15, 2004, the district court held a hearing
on the motion for summary judgment. At that hearing, the
appellants withdrew their negligence, § 1981, and § 1985
claims. After hearing arguments on the remaining Title VII
and battery claims, the district court granted defendants’
motion for summary judgment, concluding that there were no
genuine issues as to any material facts and that defendants
were entitled to judgment as a matter of law. Appellants
timely appealed, contending that the district court erred in
granting summary judgment as to both the Title VII claim and
the battery claim. We have jurisdiction over the appeal under
28 U.S.C. § 1291.
II.
We review the district court’s grant of summary judgment
de novo. See Buono v. Norton, 371 F.3d 543, 545 (9th Cir.
2004). Our review is governed by the same standard used by
the trial court under Federal Rule of Civil Procedure 56(c).
See Suzuki Motor Corp. v. Consumer Union of United States,
Inc., 330 F.3d 1110, 1131 (9th Cir. 2003). In reviewing a
grant of summary judgment, “[w]e must determine, viewing
the evidence in the light most favorable to . . . the non-moving
COLBERN v. SELIG 5263
party, whether there are any genuine issues of material fact
and whether the district court correctly applied the substantive
law.” Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922
(9th Cir. 2004) (citation omitted). “We are not to weigh the
evidence or determine the truth of the matter, but only to
determine whether there is a genuine issue for trial.” Abdul-
Jabbar v. Gen. Motors Corp., 85 F.3d 407, 410 (9th Cir.
1996) (citation omitted).
III.
[1] Appellants contend that MLB’s provision of medical
and supplemental income benefits to certain African-
Americans, former Negro League players who played in the
Major Leagues between 1947-1979 for too short a period to
vest in the MLB medical and pension benefits plans — but
not to them — constitutes unlawful discrimination on the
basis of race. Specifically, they allege disparate treatment in
the provision of these benefits in violation of Title VII. To
survive summary judgment on their Title VII claim, appel-
lants must first make a prima facie case of such treatment. In
order to do so, appellants must show that: (1) they belonged
to a protected class; (2) they were qualified for their jobs; (3)
they were subjected to an adverse employment action; and (4)
similarly situated employees not in their protected class
received more favorable treatment. See Kang v. U. Lim Am.,
Inc., 296 F.3d 810, 818 (9th Cir. 2002). Appellants meet the
first two criteria, which are not in dispute.7 They cannot sat-
isfy the latter two criteria, however, and thus we affirm the
district court’s grant of summary judgment as to their Title
VII claim.8 See Leong v. Potter, 347 F.3d 1117, 1125 (9th Cir.
7
Title VII applies to all racial groups, whether majority or minority. See
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278-80 (1976).
8
Appellees argue that appellants’ Title VII claim is barred by the statute
of limitations. The district court questioned the parties’ counsel about this
issue, but ultimately did not rule on it. Although we think it likely that
appellees are correct on this point, we see no need to reach the statute of
limitations issue because we agree with the district court’s decision on the
merits of the claim. See infra Part III.
5264 COLBERN v. SELIG
2003) (holding that the district court properly granted sum-
mary judgment where plaintiff could not demonstrate a prima
facie case of discrimination). Alternatively, we hold that MLB
had a legitimate non-discriminatory reason for adopting the
two benefit plans, a reason that was non-pretextual.
A.
[2] The alleged adverse employment action on which
appellants base their Title VII claim is MLB’s failure to pro-
vide them with the same medical and supplemental income
benefits that it provides to former Negro League players who,
like appellants, served in the Major Leagues during the 1947-
1979 period but did not play long enough to vest under the
MLB benefits programs in effect at the time. Appellants are
correct that Title VII’s prohibition on discrimination in the
“terms, conditions, or privileges of employment” encom-
passes certain “benefits that [an employer] is under no obliga-
tion to furnish by any express or implied contract.” Hishon v.
King & Spalding, 467 U.S. 69, 75 (1984) (internal quotation
marks omitted) (“[A] benefit, though not a contractual right
of employment, may qualify as a ‘[privilege]’ of employment
under Title VII.” (second alteration in original)). In certain
circumstances, voluntary medical or pension programs can be
benefits, the provision of which must comply with Title VII.
Appellants are incorrect, however, in their assertion that
MLB’s Negro League Plans constitute such benefits. As
Hishon, the governing case in this area, and other related
cases make clear, employers’ provision of benefits that they
are under no obligation to provide can give rise to a disparate
treatment claim under Title VII, but only if the benefits are
awarded on the basis of an employment relationship. See
Hishon, 467 U.S. at 75 (describing benefits that constitute
“privileges of employment” — and thus are subject to Title
VII — as those that are “part and parcel of the employment
relationship” or “comprise the ‘incidents of employment’ ”);
see also Judie v. Hamilton, 872 F.2d 919, 921 (9th Cir. 1989)
(describing the benefit that is a “privilege of employment”
COLBERN v. SELIG 5265
subject to Title VII as “part and parcel of a[n employee’s]
job”).
[3] Although some beneficiaries of the two Negro League
Plans may have played MLB baseball for a relatively short
period of time, eligibility for benefits is not based on such for-
mer employment with MLB or on any employment relation-
ship between MLB and the recipients. Rather, to qualify for
the Negro League Plans, a recipient need not be a former
MLB player, only a former Negro League player. A former
Negro League player who never played for an MLB team is
eligible for the benefits even though he was never employed
in any way by MLB or one of its clubs.9 Thus, although they
resemble benefits typically conferred on the basis of an
employment relationship, the Negro League Plans’ benefits
are not “part and parcel of the employment relationship”
between recipients and MLB nor are they “incidents of
employment” of the recipient by MLB.10 Because the supple-
9
Under the Negro League Supplemental Income Plan, a player must
have played at least one season in the Negro Leagues in a calendar year
prior to 1948 and must have played all or a portion of four total seasons
of professional baseball, whether in the Negro Leagues, the Major
Leagues, or both. Recipients can thus satisfy the longevity requirement of
the Supplemental Income Plan, in part, through service in MLB. However,
this does not mean that the supplemental income benefits are awarded
based on an employment relationship between the recipients and MLB
because the basis for the award is having played in the Negro Leagues. A
player cannot receive the benefits if he never played in the Negro Leagues
and, conversely, a player can receive the benefits if he never played in the
Major Leagues (i.e., if he played all four of his qualifying seasons in the
Negro Leagues).
10
Appellees are correct when they argue that “while assuming the form
of benefit plans for the purposes of administration, the payments made by
MLB to these former Negro League players to help defray certain of their
medical expenses and to furnish them with a modest annual stipend are,
in essence, charitable contributions — nothing more, and nothing less.”
Equally correct, however, would be the characterization of the payments
as conscience money or guilt payments to make up for years of invidious
discrimination on the part of the owners of the Major League ball clubs
that historically monopolized America’s favorite pastime.
5266 COLBERN v. SELIG
mental income payments and medical benefits MLB provides
to former Negro League players are not awarded on the basis
of an employment relationship with MLB, but rather on the
basis of participation in another entity to which MLB had no
legal relationship, the receipt of these benefits cannot give rise
to a valid Title VII claim. In other words, the fact that the
appellants do not receive the same or substantially similar
benefits as those provided under the Negro League Plans can-
not be considered an “adverse employment action” because
the provision of these benefits by the MLB is not an “employ-
ment action” at all. Appellants therefore cannot satisfy the
critical third prong for making a prima facie case under Title
VII.
B.
[4] Similarly, in determining whether summary judgment is
appropriate, we may assess independently the question
whether the former players receiving the benefits are similarly
situated to appellants. In order to show that the “employees”
allegedly receiving more favorable treatment are similarly sit-
uated (the fourth element necessary to establish a prima facie
case under Title VII), the individuals seeking relief must dem-
onstrate, at the least, that they are similarly situated to those
employees in all material respects. See Aragon v. Republic
Silver State Disposal, Inc., 292 F.3d 654, 660 (9th Cir. 2002)
(citing with approval the Second Circuit’s opinion in McGuin-
ness v. Lincoln Hall, 263 F.3d 49, 53-54 (2d Cir. 2001) —
which stated that “similarly situated” means that employees
must “be similarly situated in all material respects” — as “ex-
plaining [the] minimal showing necessary to establish co-
workers were similarly situated”); see also Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.
1998) (holding that “the plaintiff must show that the ‘compa-
rables’ are similarly-situated in all respects” (citation and
internal quotation marks omitted)); Lynn v. Deaconess Med.
Center-West Campus, 160 F.3d 484, 487 (8th Cir. 1998)
(requiring that employees be “similarly situated in all relevant
COLBERN v. SELIG 5267
respects” (citation and internal quotation marks omitted)).
Appellants have failed to demonstrate they are similarly situ-
ated in all material respects to the former Negro League play-
ers they assert are receiving more favorable treatment, and
thus they cannot establish a prima facie case of discrimination
under Title VII.
[5] Appellants argue that they are similarly situated to —
but treated less favorably than — the former Negro League
players who also played in the Major Leagues between 1947-
1979 but receive medical and supplemental income benefits
under the Negro League Plans despite, like appellants, having
served in the Major Leagues for too short a period to meet the
vesting requirements in effect at the time for the MLB medi-
cal and pension plans. Although there are indeed some simi-
larities between appellants’ circumstances and that of the
players to whom they compare themselves, the two groups are
not similar in “all material respects.” Unlike the beneficiaries
of the Negro League Plans, appellants were never prevented
from playing for a MLB team, and thus unable to acquire the
necessary longevity, for reasons entirely independent of their
ability to do the job (i.e., on account of their race). Nor did
appellants ever play in the Negro Leagues, a primary require-
ment for eligibility under the Negro League Plans.
[6] MLB’s absolute ban on African-American players
before 1947 impeded those players from accumulating the
necessary years of service in the Major Leagues to qualify for
the medical and pension benefits under the terms of the MLB
benefits plans in effect at the time.11 For instance, an African-
American baseball player who had the ability to play five
11
Moreover, as appellees point out, “if anything, plaintiffs were advan-
taged by the pre-1947 exclusion and allegedly [sic] sluggish integration of
African-American athletes, because plaintiffs had fewer competitors for
roster spots on MLB Clubs,” which made it easier for them to acquire the
necessary longevity to qualify for the MLB benefits plan in effect at the
time.
5268 COLBERN v. SELIG
years of baseball at the professional level in the 1945-1950
period would have been able to play only three seasons on a
MLB team as a result of the pre-1947 ban (the other two years
would have been spent in the Negro Leagues) and thus would
not have been able to qualify for the MLB medical and pen-
sion plans under the terms in effect at the time, whereas a
white player equal in all respects would have been able to
play all five years on a MLB team and thus could have quali-
fied for the medical and pension plans.12 Indeed, the motiva-
tion for MLB’s creation of the Negro League Plans was this
fundamental difference in the ability of white and African-
American players who began their careers before 1947 to
accumulate the necessary playing years to vest in the MLB
medical and pension plans.13 As a basic matter, in order to
12
Under the Negro League Supplemental Income Plan, an individual is
eligible if he played all or a portion of a season in the Negro Leagues in
a calendar year before 1948 and if he played all or a portion of a playing
season for at least four calendar years in the Negro Leagues, Major
Leagues, or a combination of the two. In other words, a former Negro
League player still had to play a total of four seasons of professional base-
ball in order to qualify for the supplemental income benefits.
Unlike the Negro League Supplemental Income Plan, the Negro League
Medical Plan fails to specify that former Negro League players must have
played in the Negro Leagues prior to 1948 and instead requires only that
an individual be a former Negro League player. Although it could be
argued that an African-American who played in the Negro Leagues only
after 1948 would be more similarly situated to appellants, we would still
find appellants to be differently situated given the structural discrimination
that gave rise to the very existence of the Negro Leagues. In appellants’
own words, “the racist culture that permeated baseball from the 1940’s
through [the] early 1970’s” led to an “unwritten quota of two black players
per [MLB] team” after the color barrier was broken, and those two players
were “[u]sually . . . of outstanding talent.” Appellants do not provide an
example of any such player (i.e., one who played in the Negro Leagues
only after 1948 and who received benefits under the Plans). Further,
because the benefits provided under the Plans are not based on an employ-
ment relationship, see supra, we would hold the appellants’ Title VII
claim to be without merit regardless.
13
Notably, for those white players who, by virtue of when they played
in the Major Leagues, could not have qualified for pension benefits (i.e.,
COLBERN v. SELIG 5269
qualify for the benefits under the Negro League Plans, the
players to whom the appellants seek to equate themselves
must have played in the Negro Leagues — a qualification that
the appellants indisputably lack. As a result, the appellants are
not similarly situated in all material respects to former Negro
League players who also played in the Major Leagues during
the 1947-1979 period and now receive medical and supple-
mental income benefits despite not having played for four or
five years for an MLB team.14 Therefore, appellants have also
failed to satisfy the fourth criterion for establishing a prima
facie case under Title VII, which in itself warrants the grant
of summary judgment in favor of MLB.
C.
[7] In the alternative, we hold that MLB had a legitimate,
non-discriminatory and non-pretextual reason for awarding
the pension and medical benefits to African-American players
who qualified under the Plans, and not to appellants. That in
itself would support the grant of summary judgment. See
Leong, 347 F.3d at 1124 (“If the plaintiff [in a Title VII case]
establishes a prima facie case, the burden of production shifts
those players whose careers ended prior to 1947, before any MLB pension
plan existed), MLB created supplemental income benefits that are identi-
cal to those provided by the Negro League Supplemental Income Plan for
individuals who played in the Negro Leagues during the same period.
14
Instead, appellants are similarly situated in all material respects to
another group of African-American players: those who (1) had played in
the Major Leagues during the same period of time as the appellants (1947-
1979), (2) did not play long enough to qualify for medical or pension ben-
efits under the terms of the MLB benefits plans of the time, and (3) did
not play in the Negro Leagues. If such African-American players had
received medical and pension benefits from MLB, then the appellants
might be able to make a prima facie case of discrimination. The appellants
have identified no such players. Rather, they rest their Title VII claim on
a comparison to players whose situation differs in at least two material
respects — the inability of those players to play for an MLB team in the
pre-1947 period and the actual playing time those players experienced in
the Negro Leagues.
5270 COLBERN v. SELIG
to the employer to articulate a legitimate, nondiscriminatory
reason for the [adverse] employment decision. . . . If the
employer offers a nondiscriminatory reason, the burden
returns to the plaintiff to show that the articulated reason is a
pretext for discrimination.”).
[8] The Negro League Plans were created to remedy spe-
cific discrimination that directly affected identifiable individ-
uals and to compensate those individuals for injuries caused
by that discrimination, specifically, for the loss of benefits by
African-American baseball players — a loss that resulted
from their inability to acquire the necessary years of playing
time to qualify for MLB’s pension and medical benefits. The
decision to provide benefits under the Negro League Plans
only to individuals, all African-Americans, who were injured
by MLB’s policy of excluding members of their race from
playing MLB baseball does not discriminate against Cauca-
sians. Not only were Caucasians the beneficiaries of the dis-
criminatory policy; they had every opportunity under it to
acquire eligibility for the MLB benefits. Appellants were
never the victims of discrimination and were never deprived,
during any portion of their playing years, of an opportunity to
acquire the longevity necessary to become eligible for MLB
benefits; rather, they simply failed to do so. Although the
players who qualify under the Negro League Plans are all
African-American, it was African-Americans and not Cauca-
sians who were discriminated against on the basis of their
race. It is true that only players who played in the Negro
Leagues are eligible to receive benefits under the Plans. It is
also true, however, that the Negro Leagues were formed to
provide the opportunity to play professional baseball to those
who were otherwise excluded because of their race. There is
no evidence, and it would strain credulity and one’s sense of
history, to suggest that appellants or any other Caucasians
sought entry to the Negro Leagues or would have been willing
to play baseball in that forum. In short, the Plans were
adopted for the specific purpose of providing benefits to those
who had been discriminated against by being denied the
COLBERN v. SELIG 5271
opportunity to play MLB baseball and to qualify for MLB
benefits.
[9] To the extent that MLB sought to remedy in part its past
discriminatory conduct, it acted honorably and decently and
not out of an improper or invidious motive. MLB has thus
shown a legitimate, non-discriminatory reason for its decision
to provide benefits to former Negro League Players, a reason
that is not pretextual in any respect. Cf. Davis v. San Fran-
cisco, 890 F.2d 1438, 1448-49 (9th Cir. 1989) (holding that
Title VII was not violated when consent decree mandated
affirmative relief to remedy past discrimination against
minority firefighters); Higgins v. Vallejo, 823 F.2d 351, 355-
56 (9th Cir. 1987) (holding that Title VII was not violated
when a black firefighter was promoted over a white firefighter
pursuant to an affirmative action plan designed to remedy past
discrimination). Because providing a remedy for past discrim-
ination only to those who have been discriminated against
does not constitute discriminatory conduct, and because
MLB’s reasons for adopting the remedial benefit plans were
straightforward and not pretextual, any prima facie case of
discrimination appellants might have established would be
adequately rebutted by appellees, and summary judgment
would in any event be appropriate.
D.
[10] Because we conclude that appellants are unable to
establish a prima facie case of disparate treatment, and that
any such showing would in any event be rebutted by appel-
lees’ demonstration of a non-discriminatory, non-pretextual
reason for their actions, we hold that their Title VII claim can-
not survive summary judgment, and affirm the district court’s
denial of that claim.
IV.
In addition to their Title VII claim, appellants contend that
MLB team doctors and trainers committed battery by inject-
5272 COLBERN v. SELIG
ing them with multiple cortisone shots and administering
other drugs to them over the course of their careers without
their informed consent. We affirm the district court’s grant of
summary judgment as to appellants’ battery claim because
appellants have failed to show the type of intent necessary to
vitiate consent.
[11] The appellants’ battery claim is governed by Califor-
nia law. In Cobbs v. Grant, 502 P.2d 1 (Cal. 1972), the Cali-
fornia Supreme Court addressed the issue whether the lack of
informed consent to a medical procedure gives rise to a negli-
gence or battery claim for injuries that result from that proce-
dure. Id. at 8. The Cobbs court stated that:
The battery theory should be reserved for those cir-
cumstances when a doctor performs an operation to
which the patient has not consented. When the
patient gives permission to perform one type of treat-
ment and the doctor performs another, the requisite
element of deliberate intent to deviate from the con-
sent is present. However, when the patient consents
to certain treatment and the doctor performs that
treatment but an undisclosed inherent complication
with a low probability occurs, no intentional devia-
tion from the consent given appears; rather, the doc-
tor in obtaining consent may have failed to meet his
due care duty to disclose pertinent information. In
that situation the action should be pleaded in negli-
gence.
Id. (emphasis added).
In contrast with Cobbs, the California Court of Appeal, in
Nelson v. Grant, 125 Cal. App. 3d 623 (1981), upheld the trial
court’s finding that the defendant-physician was liable for bat-
tery. Id. at 628. There, the defendant-physician injected the
plaintiff with what he described to the patient as a safe and
“inert substance” that “would have ‘absolutely no side
COLBERN v. SELIG 5273
effects.’ ” Id. at 629. The substance was in fact silicone,
which at the time was considered dangerous and was highly
regulated. Id. at 629-30. Further, the defendant-physician
knew that his use of silicone was illegal. Id. at 635. Citing
Cobbs, the court distinguished the facts in the case before it
from those that Cobbs explained merely give rise to a claim
of negligence, noting that “a physician’s failure to disclose a
remote risk requires that the action sound in negligence.” Id.
at 634. The Nelson court then concluded that because the
defendant-physician had “provided Nelson with false and
misleading information and knowingly concealed information
that was material to the cause of [her] injuries[,] . . . the pro-
cedure to which Nelson consented was substantially different
from that which was performed and sufficiently different to
amount to a battery.” Id. at 635.
[12] California courts have thus held that when a patient is
affirmatively misled and consents to a procedure that is “sub-
stantially different” from that which was performed, such a
procedure may amount to a battery.15 Id. They have also held
that a doctor’s failure to disclose “pertinent information”
about a treatment with a low probability of complications is
a claim that sounds only in negligence. Cobbs, 502 P.2d at 8
(emphasis added). California courts have not decided, how-
ever, whether a doctor’s deliberate failure to disclose the
known risks of a procedure with a high or even medium prob-
ability of complications would constitute a battery. We need
not decide here, however, whether such a failure would con-
stitute a battery under California law because appellants have
failed to introduce sworn evidence giving rise to a genuine
issue of material fact as to whether the team doctors and train-
ers were aware of any such risk or indeed whether there was
in fact more than “a low probability of complications.”
15
Emphasizing that “battery is an intentional tort,” the Nelson court
stated that it “should be reserved for those circumstances where a doctor
performs an operation to which the patient has not consented.” Id. at 634.
It also stated, however, that “Cobbs implies that the failure to discuss the
nature of the treatment sounds in battery.” Id.
5274 COLBERN v. SELIG
[13] Appellants’ declarations, which were submitted by
several class members, allege only that the individual declar-
ants were “administered cortisone shots and other drugs” and
were never “informed . . . of [the] risks associated with corti-
sone shots,” that they “felt [they] had no choice but to accept
the shots or lose [their] job playing baseball,” and that they
later experienced health problems that they attributed to the
cortisone injections. There is no declaration or other sworn
evidence in the record to the effect that the team doctors or
trainers had knowledge that there were substantial risks to the
treatment they administered, that they deliberately withheld
such information from appellants, or that the consent obtained
was for a treatment “substantially different” from that which
was ultimately administered.
Although the complaint alleges in general terms that the
team doctors and trainers knew of the “serious side effects
directly correlated to excessive exposure to cortisone injec-
tion” and that the health risks involved were “purposefully
withheld” from plaintiffs, the complaint in this case cannot be
considered as evidence at the summary judgment stage
because it is unverified.16 See Schroeder v. McDonald, 55
F.3d 454, 460 & nn. 10-11 (9th Cir. 1995); Lew v. Kona Hos-
pital, 754 F.2d 1420, 1423-24 (9th Cir. 1985).
[14] Appellants have failed to present under oath specific
facts demonstrating that the procedure performed was differ-
ent than that to which they consented, that the doctors knew
of substantial risks and failed to disclose or deliberately with-
held such material information, or that appellants were
deprived of the opportunity to provide informed consent.
16
In contrast, a verified complaint may serve as an affidavit for purposes
of summary judgment if it is based on personal knowledge and if it sets
forth the requisite facts with specificity. See Lopez v. Smith, 203 F.3d
1122, 1132 n.14 (9th Cir. 2000) (en banc) (“A plaintiff’s verified com-
plaint may be considered as an affidavit in opposition to summary judg-
ment if it is based on personal knowledge and sets forth specific facts
admissible in evidence.”).
COLBERN v. SELIG 5275
Because appellants have not sufficiently established the ele-
ments of a battery claim, we conclude that summary judgment
is appropriate and therefore affirm the district court’s grant of
summary judgment as to that claim.17
CONCLUSION
We hold that appellants have failed to establish a prima
facie case of discrimination, given that the enactment of the
Negro League Plans did not constitute an adverse employ-
ment action and given that the two groups of players are not
similarly situated. Even if appellants had made such a prima
facie showing, we would conclude that appellees have pro-
vided a legitimate, non-discriminatory and non-pretextual rea-
son for their decision to implement the Plans. Therefore, we
hold that summary judgment is appropriate as to appellants’
Title VII claim. Appellants have failed to present sworn spe-
cific facts tending to show that there was a substantial risk of
injury as a result of the administration of the cortisone shots
and other drugs, that MLB’s team doctors and trainers knew
of such substantial risks and deliberately withheld such infor-
mation from appellants, or that they affirmatively misled them
as to the nature of the treatment they prescribed; therefore,
appellants have failed to raise a genuine issue of material fact
as to the elements of a battery claim. For that reason, we hold
that summary judgment is appropriate as to appellants’ battery
claim as well.
AFFIRMED.
17
The claim supported by their declarations — that appellants were not
adequately informed of the risks inherent in the treatment — is a claim
that has been characterized by California courts as negligence, not battery.
See Cobbs, 502 P.2d at 8 (stating also that “California authorities have
favored a negligence theory” and that “the trend appears to be towards cat-
egorizing failure to obtain informed consent as negligence”); see also
Trantafello v. Med. Ctr. of Tarzana, 182 Cal. App. 3d 315, 322 n.6 (1986)
(“Where the doctor fails to inform the patient of all the material risks and
potential complications, the action sounds in professional negligence
. . . .”). As noted above, appellants withdrew their negligence claim in the
district court.