Daniel King v. City of Henderson ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL S. KING, No. 22-15451
Plaintiff-Appellant, D.C. No.
2:19-cv-01129-JAD-BNW
v.
CITY OF HENDERSON, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted March 9, 2023
Las Vegas, Nevada
Before: GRABER, BENNETT, and DESAI, Circuit Judges.
Plaintiff Daniel King appeals the district court’s entry of summary judgment
in favor of Defendant City of Henderson on his claims of color discrimination and
retaliation under Title VII of the Civil Rights Act of 1964, and color discrimination
under Nevada Revised Statutes section 613.330(1). Plaintiff, a light-skinned
African-American police officer, alleges that he was reassigned from the training
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
unit to a patrol position because of his skin color. Plaintiff asserts that Chief of
Police LaTesha Watson, a dark-skinned African-American woman, and her
administration engaged in color discrimination against Plaintiff and then retaliated
against him when he vocalized his complaints of bias. We review de novo,
Sulyma v. Intel Corp. Inv. Pol’y Comm., 909 F.3d 1069, 1072 (9th Cir. 2018),
aff’d, 140 S. Ct. 768 (2020), and affirm.
1. First, Plaintiff challenges the district court’s ruling that any aspect of his
claim that is based on his March 2018 meeting with Chief Watson is time-barred.
Under 42 U.S.C. § 2000e–5(e)(1), an employee must file a charge with the Equal
Employment Opportunity Commission within 180 days after the alleged unlawful
employment practice occurs. Draper v. Coeur Rochester, Inc., 147 F.3d 1104,
1107 (9th Cir. 1998). But if an employee “first institutes proceedings with a state
or local agency with authority to grant or seek relief from such practice,” the
limitations period for filing a charge is 300 days. Id. (citation and internal
quotation marks omitted). Although the March 2018 meeting cannot provide an
independent ground for Plaintiff’s claims because it occurred outside the
applicable limitations period, it provides evidentiary support for his timely claims.
Thus, under the “continuing violation doctrine,” the meeting should be considered
as part of his discrimination claim. See id. (“[E]vents occurring outside the
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limitations period may be considered as a basis for the claim so long as those
events are part of an ongoing unlawful employment practice.”).
2. We examine Plaintiff’s discrimination claims1 under the McDonnell
Douglas burden-shifting framework. See Reynaga v. Roseburg Forest Prods., 847
F.3d 678, 691 (9th Cir. 2017) (setting forth the elements of a prima facie case of
discrimination under Title VII). We do not dispute that Plaintiff has experienced
colorism in the past or that he genuinely believes that his reassignment was
motivated by colorist animus. Nonetheless, Plaintiff failed to establish a prima
facie case of discrimination. The record contains no evidence that any similarly
situated individual outside his protected class was treated more favorably. See
Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003)
(“[I]ndividuals are similarly situated when they have similar jobs and display
similar conduct.” (emphasis added)). Nor does the record contain other evidence
that gives rise to an inference of discrimination.
Even if Plaintiff could establish a prima facie case of discrimination, the
record contains no evidence that Defendant’s legitimate, nondiscriminatory reasons
for the reassignment—Plaintiff’s conduct that was perceived as insubordinate and
1
Nevada law dictates that Plaintiff’s state law discrimination claim be analyzed
under the same principles applied to Title VII claims. Apeceche v. White Pine
County, 615 P.2d 975, 977–78 (Nev. 1980).
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Plaintiff’s lack of compatibility with the new administration’s use-of-force
philosophy—were pretextual. See id. at 642 (explaining that circumstantial
evidence of pretext must be “specific and substantial”). Accordingly, we affirm as
to Plaintiff’s federal and state discrimination claims.
3. With respect to Plaintiff’s retaliation claim under Title VII, we also
affirm. See Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000) (setting forth
the elements of a prima facie case of retaliation under Title VII). The record does
not establish a causal link between Plaintiff’s complaints of bias and his
reassignment. Indeed, the record does not show that the superior officers who
were responsible for his reassignment even knew about his complaints of colorism
to other individuals. See Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d
1185, 1197 (9th Cir. 2003) (noting that the employee “fail[ed] to point to any
evidence in the record supporting her assertion that . . . the particular principals
who made the allegedly retaliatory hiring decisions, in fact were aware of her
complaints” and holding that “[w]ithout any such evidence, there is no genuine
issue of material fact” (emphasis omitted)), as amended on denial of reh’g, (May 8,
2003). Because there is no evidence that the officers who reassigned Plaintiff
knew about his complaints of colorism, no reasonable jury could find that a
retaliatory intent “more likely motivated the employer” than the legitimate reasons
Defendant has provided for Plaintiff’s reassignment, or that Defendant’s “proffered
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explanation is unworthy of credence.” Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 256 (1981).
4. Finally, Plaintiff argues that the district court erred when it failed to strike
two exhibits from Defendant’s Motion for Summary Judgment: (1) the
investigative report prepared by Core4 Consulting regarding Plaintiff’s
discrimination claims, and (2) portions of Deputy Chief Thedrick Andres’
declaration. Because Plaintiff fails to demonstrate that the court’s failure to strike
those exhibits resulted in prejudice, we affirm. See Orr v. Bank of Am., NT & SA,
285 F.3d 764, 773 (9th Cir. 2002) (“[W]e must affirm the district court unless its
evidentiary ruling was manifestly erroneous and prejudicial.”).
AFFIRMED.
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