Constance George v. House of Hope Recovery

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 18, 2021
• Docket: 18-35551
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS CONSTANCE GEORGE, No. 18-35551

Plaintiff-Appellant, D.C. No. 3:15-cv-01277-SB

v. MEMORANDUM* PATRICIA BARCROFT; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Stacie F. Beckerman, Magistrate Judge, Presiding

Argued and Submitted November 9, 2021** Portland, Oregon

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel heard oral argument on Plaintiff-Appellant’s claims against Patricia Barcroft and House of Hope Recovery. But the panel unanimously concluded that, as to Plaintiff-Appellant’s claims against Bridges to Change, Inc. and Washington County Department of Housing Services, the case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: GRABER and CHRISTEN, Circuit Judges, and R. COLLINS,*** District Judge.

Constance George appeals the district court’s judgment in favor of Patricia

Barcroft, House of Hope Recovery, Bridges to Change, Inc., and Washington

County Department of Housing Services (Washington County). George alleges

defendants discriminated against her on the basis of her race and religion. We lack

jurisdiction to review George’s appeal from the dismissal of her claims against

Bridges to Change and Washington County. We affirm the district court’s

judgment as to George’s claims against Barcroft and House of Hope.

We review de novo the timeliness of a notice of appeal, United States v.

Withers, 638 F.3d 1055, 1061 (9th Cir. 2011), and a district court’s order granting

summary judgment, Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d

1142, 1156 (9th Cir. 2013). We may consider jurisdictional questions at any time.

See Rowe v. United States, 633 F.2d 799, 800 (9th Cir. 1980).

1. We have jurisdiction over George’s claims on appeal if: (1) she

appealed a “final decision[],” 28 U.S.C. § 1291; (2) her appeal was timely, see

Portland Fed. Emps. Credit Union v. Cumis Ins. Soc’y, Inc., 894 F.2d 1101, 1103

*** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. 2 (9th Cir. 1990); and (3) she complied with “the notice required by Rule 3,” Smith v.

Barry, 502 U.S. 244, 248–49 (1992).

George indicated her intent to appeal the district court’s April 20, 2018

judgment by filing a motion for pro bono counsel in the district court on May 21,

2018. The April 20, 2018 judgment was final because the district court had fully

adjudicated George’s claims and the judgment indicated finality as to all claims

and parties. See Casey v. Albertson’s Inc., 362 F.3d 1254, 1258 (9th Cir. 2004);

see also Hall v. City of Los Angeles, 697 F.3d 1059, 1070 (9th Cir. 2012) (“Once a

district court enters final judgment and a party appeals, . . . earlier, non-final orders

become reviewable.”). George’s notice of appeal was timely because she filed her

motion for pro bono counsel with the district court within 30 days after entry of the

judgment. See Fed. R. App. P. 4(a)(1)(A). And because George’s motion gave

notice of her intent to appeal the court’s final judgment, we construe her motion to

be the “functional equivalent” of a formal notice of appeal. Smith, 502 U.S. at 248.

However, George did not serve her notice of appeal on Bridges to Change or

Washington County. As such, she did not comply with the requirements of Federal

Rule of Appellate Procedure 3 as to those two defendants. The purpose of a notice

of appeal “is to ensure that the filing provides sufficient notice to other parties and

the courts.” Id. (emphasis added); see also In re Sweet Transfer & Storage, Inc.,

3 896 F.2d 1189, 1193 (9th Cir. 1990) (“In prior cases, we have required the

document in question to have been served upon the other parties.”), superseded in

part by rule as stated in In re Arrowhead Ests. Dev. Co., 42 F.3d 1306 (9th Cir.

1994). Accordingly, we conclude that we lack jurisdiction over George’s appeal of

her claims against Bridges to Change and Washington County. We consider the

merits of the appeal as to Barcroft and House of Hope.

2. George alleges the district court erred in granting summary judgment

on her religious discrimination claims against House of Hope and Barcroft. We

analyze Fair Housing Act “disparate treatment claims under Title VII’s three-stage

McDonnell Douglas/Burdine test.” Gamble v. City of Escondido, 104 F.3d 300,

305 (9th Cir. 1997). To establish a disparate treatment claim, “the plaintiff must

first establish a prima facie case.” Id. The district court concluded George failed

to establish a prima facie case because it found “no evidence in the record that

Barcroft did not terminate a non-Jehovah’s Witness resident under similar

circumstances.” Although the prima facie stage of the McDonnell-Douglas

framework is “not onerous,” George bore the burden to produce some evidence of

the defendants’ treatment of a similarly situated individual. See Lyons v. England,

307 F.3d 1092, 1112 (9th Cir. 2002).

4 On appeal, George offers a new theory of “reasonable inferences,” but her

theory is based on evidence that was not presented to the district court.1 We affirm

the district court’s order granting summary judgment in favor of House of Hope

and Barcroft because George failed to present “any legitimate ‘comparator’

evidence on her religious discrimination claim,” Bodett v. CoxCom, Inc., 366 F.3d

736, 744 (9th Cir. 2004), and because her “reasonable inferences” theory relies on

evidence she did not present to the district court.

3. George urges us to remand her discrimination claims to the district

court. First, she contends the district court should consider whether the Fair

Housing Act’s religious exception, 42 U.S.C. § 3607(a), applies to Barcroft and

House of Hope. Because we affirm the district court’s decision that George did

“not present[] any evidence of disparate treatment on the basis of religion,” we

decline to remand for the district court to consider this exception. George also

requests remand for the district court to consider whether a new trial is warranted

on her racial discrimination claim, but she fails to assert any colorable argument as

1 George contends she had “no occasion” to present her “reasonable inferences” theory to the district court because the district court sua sponte addressed her failure to make a prima facie showing. However, George expressly argued in her opposition to Barcroft and House of Hope’s motion for summary judgment that she had established a prima facie case pursuant to the Fair Housing Act, and she did not ask the district court for an opportunity to present more evidence. 5 to why remand of that claim is warranted. Accordingly, we decline to grant

George’s request for remand.

AFFIRMED IN PART and DISMISSED IN PART.