Benito Vasquez v. Kitsap County

FILED
MAY 20 2010
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENITO VASQUEZ, No. 09-35480
Plaintiff–Appellant, D.C. No. 07-CV-5576-BHS
v.
KITSAP COUNTY, MEMORANDUM*
Defendant,
and
KITSAP COUNTY TRANSIT,
Defendant–Appellee.
Appeal from the United States District Court
For the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted April 8, 2010
Seattle, Washington
Before: HAWKINS, LUCERO,** and N.R. SMITH, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.
Benito Vasquez appeals the district court’s grant of summary judgment in
favor of his former employer, Kitsap Transit.1 Exercising jurisdiction under 28
U.S.C. § 1291, we affirm.
In 2004, Vasquez filed a charge against his then-employer Kitsap Transit
with the Equal Employment Opportunity Commission (“EEOC”). After the EEOC
dismissed this charge, Vasquez filed suit in federal district court asserting claims
against Kitsap Transit and other defendants based in part on an “assault and
battery” he claimed occurred at his workplace.2 During discovery, Kitsap Transit
obtained a “REPORT” written by Vasquez in which he threatened other employees
and alleged a separate sexual assault by coworkers. Vasquez reiterated these
threats during a court-ordered conference call. Kitsap Transit was unable to verify
Vasquez’s allegations of battery and sexual assault, but did discover information
suggesting Vasquez had submitted false information on his employment
application. Kitsap Transit terminated Vasquez’s employment in March 2006.
Approximately twenty months later, Vasquez again filed suit in federal court
alleging, among other claims,3 retaliatory termination in violation of Title VII of
the Civil Rights Act of 1964. The district court granted summary judgment in
1
Vasquez captioned his complaint naming “Kitsap County Transit” as
defendant. We refer to defendant by its proper name, Kitsap Transit.
2
This lawsuit was ultimately dismissed.
3
These other claims were later dismissed.
favor of Kitsap Transit on the retaliation claim, concluding Kitsap Transit had
provided legitimate, non-retaliatory reasons for discharging Vasquez, and Vasquez
had failed to demonstrate these reasons were pretextual. Vasquez appeals this
determination.
We review a district court’s grant of summary judgment de novo. EEOC v.
Luce, Forward, Hamilton & Scripps, 345 F.3d 742, 746 (9th Cir. 2003). If a
plaintiff in a retaliatory termination suit establishes a prima facie case of
retaliation, “the burden of production shifts to the employer to present legitimate
reasons for the [discharge].” Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th
Cir. 2000). “[If] the employer carries this burden, plaintiff must demonstrate a
genuine issue of material fact [exists] as to whether the reason advanced by the
employer” was a pretext for retaliation. Id.Kitsap Transit proffered three legitimate, non-retaliatory reasons for
terminating Vasquez’s employment: (1) Vasquez apparently submitted false
information on his employment application;4 (2) he made threatening statements
toward other employees; and (3) he either fabricated or failed to report incidents of
misconduct. For substantially the same reasons set forth by the district court, we
4
Vasquez later provided documentation suggesting that his application was
accurate, but he did not provide this information to Kitsap Transit before he was
terminated.
conclude Vasquez is unable to demonstrate these reasons were pretextual.
Accordingly, summary judgment in favor of Kitsap Transit was proper.
AFFIRMED.