Ken Riddle v. David Washington

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 21 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KEN RIDDLE, No. 10-16184
Plaintiff - Appellant, D.C. No. 2:07-cv-01127-ECR-LRL
v.
MEMORANDUM*
DAVID WASHINGTON; CITY OF LAS
VEGAS,
Defendants - Appellees.
Appeal from the United States District Court
for Nevada, Las Vegas
Edward C. Reed, Junior, Senior District Judge, Presiding
Argued and Submitted September 1, 2011
San Francisco, California
Before: WALLACE and FISHER, Circuit Judges, and MILLS, Senior District
Judge.**
Riddle appeals from the district court’s summary judgment in favor of
Appellees Washington and the City of Las Vegas. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Mills, Senior District Judge for the Central
District of Illinois, sitting by designation.
U.S.C. § 1291. Applying de novo review, Metoyer v. Chassman, 504 F.3d 919,
930 (9th Cir. 2007), and construing the evidence in favor of Riddle as the
nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), we
reverse and remand.
Riddle, a Caucasian, alleges that he was terminated because of his race in
violation of 42 U.S.C. § 1981, 42 U.S.C. § 1983 and Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. The analytic framework used in Title
VII cases also applies to Riddle’s purposeful discrimination claims under sections
1981 and 1983. Metoyer, 504 F.3d at 930. Title VII makes it unlawful for an
employer “to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race
[or] color . . . .” 42 U.S.C. § 2000e-2(a)(1). This section prohibits discrimination
against Caucasians as well as minorities. Ricci v. DeStefano, 129 S. Ct. 2658, 2673
(2009).
We apply the framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). The parties do not contest the district court’s conclusion that
Riddle established a prima facie case for employment discrimination or the district
court’s conclusion that Appellees articulated a legitimate, nondiscriminatory
reason for Riddle’s termination. But, “a plaintiff may defeat a defendant’s motion
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for summary judgment by offering proof that the employer’s legitimate,
nondiscriminatory reason is actually a pretext for racial discrimination.” Cornwell
v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). Much of
Riddle’s evidence of pretext is speculative, hearsay or self-serving, but there is
enough admissible evidence that, construed most favorably to Riddle, is sufficient
to defeat Appellees’ motion for summary judgment. See Fed. R. Civ. P. 56(c)(4).
A reasonable juror could view the written documentation of Riddle’s job
performance as inconsistent with Appellees’ proffered reason for Riddle’s
termination. Riddle’s employment file does not contain references to the violations
that purportedly caused Washington to lose all faith in Riddle. Moreover,
Washington wrote a favorable recommendation letter for Riddle in February 2006
only months before Riddle’s July termination. Washington wrote, among other
things, that Riddle “was once my immediate supervisor and we enjoyed an
excellent working relationship,” that Riddle “is a visionary in this service,” that
Riddle “has an excellent work record with our department” and that he is
“extremely professional.” Riddle received numerous merit increases in pay
between 2001 and June 2006. Riddle also received good performance reviews
from Washington in 2005 and 2006, which Riddle claims were not included in the
employment file produced by Appellees. See Akiona v. United States, 938 F.2d
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158, 161 (9th Cir. 1991) (“Generally, a trier of fact may draw an adverse inference
from the destruction of evidence relevant to a case”).
In addition, based on Riddle’s assertions in his declaration, Appellees’
reasons for Riddle’s termination rest on disputed issues of material fact. Riddle
denies Washington’s assertion that Riddle missed a meeting called by Washington
in August 2001 because it slipped Riddle’s mind; instead, Riddle alleges that he
was out of town. Riddle denies that he ever disappeared from his job for long
periods or that Washington talked with him about it. Riddle admits that
Washington advised him to stop smoking in his office in 2004, but denies that
Washington had three discussions with him regarding smoking in his office
between 2002 and 2004.
Other aspects of Riddle’s termination and replacement could buttress a
reasonable finding of pretext. According to Riddle and another fire department
employee, Washington repeatedly commented that “It’s not that I’m anti white,
I’m pro black.” See Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th
Cir. 1995) (comments favoring one group may support inference of discrimination
against another group). Riddle has presented some evidence that Washington
stated a preference for Gene Campbell, an African American, to replace
Washington as Fire Chief upon his retirement. Riddle was one of four Deputy Fire
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Chiefs, the position directly below Fire Chief. After working for the fire
department for 28 years and serving as Deputy Chief for 11 years, Riddle was
terminated without having an opportunity to refute the emailed complaint of his
smoking that led to his termination. See Fonseca v. Sysco Food Servs. of Ariz.,
Inc., 374 F.3d 840, 850 (9th Cir. 2004) (failure to conduct investigation may
support finding of pretext). Washington promoted Campbell to replace Riddle
although another employee viewed Campbell as knowing nothing about areas in
which he had previously been promoted. This evidence, combined with the written
documentation of Riddle’s job performance and the materially disputed aspects of
his performance, viewed in the light most favorable to Riddle, could provide a
sufficient basis for a reasonable juror to find that Appellees’ reasons for Riddle’s
termination are pretext.
Because we reverse the summary judgment on Riddle’s federal claims, we
also remand for the district court to reconsider whether it should exercise
supplemental jurisdiction over Riddle’s state law claims for wrongful termination
and defamation. See Fang v. U.S., 140 F.3d 1238, 1244 (9th Cir. 1998).
REVERSED and REMANDED.
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