Michael Lusk v. Senior Services

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 13 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MICHAEL L. LUSK, No. 13-35621
Plaintiff - Appellant, D.C. No. 2:12-cv-00733-MJP
v.
MEMORANDUM*
SENIOR SERVICES,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief District Judge, Presiding
Submitted May 7, 2015**
Seattle, Washington
Before: GOULD and CHRISTEN, Circuit Judges and BLOCK,*** Senior District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
1
Michael Lusk appeals from the district court’s order granting summary
judgment in favor of Senior Services on Lusk’s claims for wrongful termination in
violation of public policy under Washington law, and gender, race, and color
discrimination and retaliation in violation of the Washington Law Against
Discrimination (WLAD) and Title VII of the Civil Rights Act of 1964. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s judgment.1
1. Lusk argues that Senior’s decision to eliminate his position and not rehire
him in January 2011 amounted to wrongful termination in violation of public
policy. But it is clear that Lusk was terminated in November 2010 and his claim is
based on a failure to rehire, which cannot form the basis of a common-law
wrongful termination claim in Washington. See Warnek v. ABB Combustion Eng’g
Servs., Inc., 972 P.2d 453, 458 (Wash. 1999). This claim was correctly dismissed.
2. Under both Title VII and WLAD, the plaintiff bears the burden of
establishing a prima facie case of discrimination. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); Domingo v. Boeing Emps.’ Credit Union, 98
P.3d 1222, 1225 (Wash. Ct. App. 2004).
A plaintiff alleging gender discrimination must establish, as an element of
his prima facie case, that he was qualified for the position he sought. See Mondero
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The parties are familiar with the facts, so we do not recount them here.
2
v. Salt River Project, 400 F.3d 1207, 1211 (9th Cir. 2005); Fulton v. State, Dep’t of
Soc. & Health Servs., 279 P.3d 500, 508 (Wash. Ct. App. 2012). Lusk failed to
establish a prima facie case of gender discrimination because he did not meet the
minimum qualifications for the Southeast Seattle Senior Center Director position.
Assuming that Lusk established a prima facie case of race or color
discrimination, these claims fail because Senior presented evidence that it had a
legitimate, nondiscriminatory reason for laying off Lusk and not rehiring him: the
agency was in financial trouble, Lusk’s “lead” position was not necessary in a
program with only one full-time employee, and eliminating Lusk’s position would
result in the greatest savings because he was the highest paid outreach specialist.
Lusk did not show that Senior’s financial justifications were pretext.
3. Lusk failed to establish a prima facie case that Senior’s decision not to rehire
him was retaliation for his complaint to the City of Seattle about misappropriation
of funds. There is no evidence that anyone at Senior knew about Lusk’s complaint
before the decision was made not to rehire him. See Tyner v. State, 154 P.3d 920,
928 (Wash. Ct. App. 2007) (“To establish a prima facie case for retaliation, a
plaintiff must show that . . . there is a causal link between the employee’s activity
and the employer’s adverse action.”). Even if Lusk had established a prima facie
case, as discussed, Senior presented evidence of a legitimate, nondiscriminatory
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reason for not rehiring Lusk, and Lusk failed to rebut this evidence. See Ray v.
Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000) (applying discrimination burden-
shifting scheme to retaliation claim); Milligan v. Thompson, 42 P.3d 418, 424
(Wash. App. 2002) (applying burden-shifting scheme to WLAD retaliation claim).
Lusk claims several other instances of retaliation based on his “opposition
activity”: (1) Senior prevented him from applying for the Center Director position
by telling him—accurately—that it planned to postpone hiring for the position; (2)
Klein told Lusk she would record what Townsend reported to her in Lusk’s
personnel file; (3) Townsend “shunned” Lusk after Townsend learned that Lusk
had applied for the Center Director position; (4) Lusk was “banished” to the
downtown office for less than one day; (5) Lusk was laid off; (6) Lusk was not
rehired; and (7) Lusk’s position was eliminated. The first four claims cannot
establish a prima facie case of retaliation because they do not allege “materially
adverse” actions. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006) (concluding that a “materially adverse” action is one that “might have
disuaded a reasonable worker from making or supporting a charge of
discrimination”). The final three claims fail because Lusk did not present any
evidence showing a causal connection between Senior’s decision to terminate or
not rehire him and his complaints. See Tyner, 154 P.3d at 928. Even if he had
4
established causation, as discussed, he failed to rebut Senior’s evidence that its
decisions were based on legitimate, non-retaliatory financial considerations.
AFFIRMED
5