NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 13 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SHANNON CROSS, No. 24-6068 D.C. No. Plaintiff - Appellant, 4:21-cv-01312-JST v. MEMORANDUM* CENTRAL CONTRA COSTA TRANSIT AUTHORITY,
Defendant - Appellee.
Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding
Submitted January 9, 2026** San Francisco, California
Before: NGUYEN and BENNETT, Circuit Judges, and MATSUMOTO, District Judge.***
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 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 Kiyo A. Matsumoto, United States District Judge for the Eastern District of New York, sitting by designation. Plaintiff-Appellant Shannon Cross (“Cross”) appeals the district court’s
grant of summary judgment in favor of her former employer, Defendant-Appellee
Central Contra Costa Transit Authority (“CCCTA”). Less than a year after her
employment as a bus operator, Cross collided with a bicyclist while operating a
CCCTA bus. After an investigation revealed that Cross was completely at fault for
the collision, and had also repeatedly violated multiple CCCTA policies and
California Vehicle Code violations, CCCTA terminated Cross. Cross sued,
alleging claims for religious discrimination, retaliation, and hostile work
environment under Title VII of the Civil Rights Act and California’s Fair
Employment and Housing Act (“FEHA”). We have jurisdiction under 28 U.S.C. §
1291, and review de novo. Brinson v. Linda Rose Joint Venture, 53 F.3d 1044,
1047 (9th Cir. 1995). We affirm.
1. The district court did not err in granting summary judgment to CCCTA
on Cross’s religious discrimination claims under Title VII and FEHA. “To
establish a prima facie case, a plaintiff must offer evidence that gives rise to an
inference of unlawful discrimination.” Cordova v. State Farms Ins. Cos., 124 F.3d
1145, 1148 (9th Cir. 1997) (citation modified). A prima facie case may be
established either by “direct evidence of discriminatory intent” or through the
McDonnell Douglas framework. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th
Cir. 1994); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see Guz v.
2 24-6068 Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (2000) (“Because of the similarity between
state and federal employment discrimination laws, California courts look to
pertinent federal precedent when applying our own statutes.”).
“Direct evidence of discriminatory intent consists of evidence which, if
believed, proves the fact of discriminatory animus without inference or
presumption.” Mayes v. WinCo Holdings, Inc., 846 F.3d 1274, 1280 (9th Cir.
2017) (quoting Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 662
(9th Cir. 2002)) (emphasis added).
As direct evidence, Cross points to the statements of Supervisors Morris and
Carroll that she cannot wear her hijab. But CCCTA explained that the supervisors
were “merely attempting to enforce the dress code,” and under CCCTA’s
handbook for transit operators, supervisors were expressly empowered to issue
verbal warnings for perceived rule infractions of CCCTA’s policy, such as wearing
unauthorized headwear. “[W]here there are obvious alternative explanations for
the purportedly . . . invidious discrimination plaintiff asks us to infer,
discrimination is not a plausible conclusion.” Hittle v. City of Stockton, California,
101 F.4th 1000, 1014 (9th Cir. 2024) (citation modified). Because these
statements do not necessarily lead to the conclusion that the supervisors harbored
an animus against the Muslim religion rather than an attempt to enforce the dress
code, Cross fails to establish discriminatory intent through direct evidence.
3 24-6068 Under the McDonnell Douglas burden-shifting framework, a plaintiff may
establish a prima facie case of discrimination by showing: (1) they belong to a
protected class; (2) they were qualified to do the job; (3) they were subject to an
adverse employment action; and (4) the employer treated similarly situated
employees outside of the plaintiff’s class more favorably, or other circumstances
surrounding the adverse employment action give rise to an inference of
discrimination. Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th
Cir. 2004). If the plaintiff establishes a prima facie case, the “burden then must
shift to the employer to articulate some legitimate, nondiscriminatory reason for
the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802. If the employer
satisfies that burden, then the burden shifts back to the plaintiff to show that the
“proffered reason was a pretext for discrimination.” Bergene v. Salt River Project
Agr. Imp. & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001).
As evidence of a similarly situated employee who was treated more
favorably, Cross points to Brown, a non-Muslim bus operator at CCCTA who also
had an occurrence with a bicyclist. But there were “significant differences
between” Cross and Brown. First, the Police Department found that Brown was
“not at fault” for her accident, whereas Cross was found “100% at fault by the
Police Department.” Second, Brown’s occurrence was deemed “non-preventable,”
whereas Cross’s occurrence was deemed “preventable.” Finally, Brown had been
4 24-6068 a “25+ year veteran,” whereas Cross had been driving with CCCTA for less than a
year. See Tyson v. Gannett Co., 538 F.3d 781, 784 (7th Cir. 2008) (citation
omitted) (“[D]ifferences in seniority will tend to make two employees dissimilar
for purposes of the plaintiff’s prima facie case.”). Thus, because of these
differences, Brown is not similarly situated “in all material respects,” Moran v.
Selig, 447 F.3d 748, 755 (9th Cir. 2006), and Cross failed to establish a prima facie
case of discrimination under McDonnell Douglas.
2. The district court did not err in granting summary judgment to CCCTA
on Cross’s retaliation claims under Title VII and FEHA. Cross argues that a
reasonable jury could find that she was unlawfully terminated in retaliation
“because of” her request to wear a hijab or her complaints of harassment. To
determine retaliation claims brought under Title VII and FEHA, courts apply the
McDonnell Douglas burden-shifting framework. See Porter v. Cal. Dep’t of
Corrs.,
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 13 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SHANNON CROSS, No. 24-6068 D.C. No. Plaintiff - Appellant, 4:21-cv-01312-JST v. MEMORANDUM* CENTRAL CONTRA COSTA TRANSIT AUTHORITY,
Defendant - Appellee.
Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding
Submitted January 9, 2026** San Francisco, California
Before: NGUYEN and BENNETT, Circuit Judges, and MATSUMOTO, District Judge.***
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 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 Kiyo A. Matsumoto, United States District Judge for the Eastern District of New York, sitting by designation. Plaintiff-Appellant Shannon Cross (“Cross”) appeals the district court’s
grant of summary judgment in favor of her former employer, Defendant-Appellee
Central Contra Costa Transit Authority (“CCCTA”). Less than a year after her
employment as a bus operator, Cross collided with a bicyclist while operating a
CCCTA bus. After an investigation revealed that Cross was completely at fault for
the collision, and had also repeatedly violated multiple CCCTA policies and
California Vehicle Code violations, CCCTA terminated Cross. Cross sued,
alleging claims for religious discrimination, retaliation, and hostile work
environment under Title VII of the Civil Rights Act and California’s Fair
Employment and Housing Act (“FEHA”). We have jurisdiction under 28 U.S.C. §
1291, and review de novo. Brinson v. Linda Rose Joint Venture, 53 F.3d 1044,
1047 (9th Cir. 1995). We affirm.
1. The district court did not err in granting summary judgment to CCCTA
on Cross’s religious discrimination claims under Title VII and FEHA. “To
establish a prima facie case, a plaintiff must offer evidence that gives rise to an
inference of unlawful discrimination.” Cordova v. State Farms Ins. Cos., 124 F.3d
1145, 1148 (9th Cir. 1997) (citation modified). A prima facie case may be
established either by “direct evidence of discriminatory intent” or through the
McDonnell Douglas framework. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th
Cir. 1994); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see Guz v.
2 24-6068 Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (2000) (“Because of the similarity between
state and federal employment discrimination laws, California courts look to
pertinent federal precedent when applying our own statutes.”).
“Direct evidence of discriminatory intent consists of evidence which, if
believed, proves the fact of discriminatory animus without inference or
presumption.” Mayes v. WinCo Holdings, Inc., 846 F.3d 1274, 1280 (9th Cir.
2017) (quoting Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 662
(9th Cir. 2002)) (emphasis added).
As direct evidence, Cross points to the statements of Supervisors Morris and
Carroll that she cannot wear her hijab. But CCCTA explained that the supervisors
were “merely attempting to enforce the dress code,” and under CCCTA’s
handbook for transit operators, supervisors were expressly empowered to issue
verbal warnings for perceived rule infractions of CCCTA’s policy, such as wearing
unauthorized headwear. “[W]here there are obvious alternative explanations for
the purportedly . . . invidious discrimination plaintiff asks us to infer,
discrimination is not a plausible conclusion.” Hittle v. City of Stockton, California,
101 F.4th 1000, 1014 (9th Cir. 2024) (citation modified). Because these
statements do not necessarily lead to the conclusion that the supervisors harbored
an animus against the Muslim religion rather than an attempt to enforce the dress
code, Cross fails to establish discriminatory intent through direct evidence.
3 24-6068 Under the McDonnell Douglas burden-shifting framework, a plaintiff may
establish a prima facie case of discrimination by showing: (1) they belong to a
protected class; (2) they were qualified to do the job; (3) they were subject to an
adverse employment action; and (4) the employer treated similarly situated
employees outside of the plaintiff’s class more favorably, or other circumstances
surrounding the adverse employment action give rise to an inference of
discrimination. Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th
Cir. 2004). If the plaintiff establishes a prima facie case, the “burden then must
shift to the employer to articulate some legitimate, nondiscriminatory reason for
the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802. If the employer
satisfies that burden, then the burden shifts back to the plaintiff to show that the
“proffered reason was a pretext for discrimination.” Bergene v. Salt River Project
Agr. Imp. & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001).
As evidence of a similarly situated employee who was treated more
favorably, Cross points to Brown, a non-Muslim bus operator at CCCTA who also
had an occurrence with a bicyclist. But there were “significant differences
between” Cross and Brown. First, the Police Department found that Brown was
“not at fault” for her accident, whereas Cross was found “100% at fault by the
Police Department.” Second, Brown’s occurrence was deemed “non-preventable,”
whereas Cross’s occurrence was deemed “preventable.” Finally, Brown had been
4 24-6068 a “25+ year veteran,” whereas Cross had been driving with CCCTA for less than a
year. See Tyson v. Gannett Co., 538 F.3d 781, 784 (7th Cir. 2008) (citation
omitted) (“[D]ifferences in seniority will tend to make two employees dissimilar
for purposes of the plaintiff’s prima facie case.”). Thus, because of these
differences, Brown is not similarly situated “in all material respects,” Moran v.
Selig, 447 F.3d 748, 755 (9th Cir. 2006), and Cross failed to establish a prima facie
case of discrimination under McDonnell Douglas.
2. The district court did not err in granting summary judgment to CCCTA
on Cross’s retaliation claims under Title VII and FEHA. Cross argues that a
reasonable jury could find that she was unlawfully terminated in retaliation
“because of” her request to wear a hijab or her complaints of harassment. To
determine retaliation claims brought under Title VII and FEHA, courts apply the
McDonnell Douglas burden-shifting framework. See Porter v. Cal. Dep’t of
Corrs., 419 F.3d 885, 894 (9th Cir. 2004); Loggins v. Kaiser Permanente Int’l, 151
Cal. App. 4th 1102, 1108–09 (2007). An employee may establish a prima facie
case of retaliation by showing: (1) she engaged in a protected activity; (2) her
employer subjected her to an adverse employment action; and (3) a causal link
exists between the protected activity and the adverse action. Ray v. Henderson,
217 F.3d 1234, 1240 (9th Cir. 2000). If the plaintiff establishes a prima facie case,
“the burden shifts to the defendant to articulate a legitimate nondiscriminatory
5 24-6068 reason for its decision.” Id. If the employer satisfies that burden, then the burden
shifts back to the plaintiff to show that the “proffered reason was a pretext for
unlawful discrimination.” Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir.
2007).
At issue is the district court’s analysis in the third step. Cross has not shown
that CCCTA’s termination was pretextual. CCCTA terminated Cross because
Cross violated California Vehicle Code § 21760(b) when she hit a bicyclist. Cross
“acknowledged that she was ‘at complete fault’” for the accident. As part of the
investigation on Cross’s termination, a human resources director observed that
Cross had “violated several other serious rules and traffic laws, including running
stop signs and red lights, using her cell phone while in revenue service, and failing
to stop at BART crosswalks.” The director concluded that Cross “repeatedly
drives unsafely.” Finally, contrary to Cross’s argument, CCCTA did not violate its
own policy and procedure, which allowed CCCTA to initiate “termination” for
reasons including “poor job performance” and “violation of law.” Because Cross
did not demonstrate that CCCTA’s reasons for her termination were pretextual, she
fails to meet her burden on her retaliation claims, and CCCTA is entitled to
summary judgment.
3. The district court did not err in granting summary judgment to CCCTA
on Cross’s harassment claims alleging hostile work environment under Title VII
6 24-6068 and FEHA. To allege a prima facie hostile work environment based on religion,
Cross needed to plead: “(1) that [s]he was subjected to verbal or physical conduct
of a harassing nature [based on her religion]; (2) that this conduct was unwelcome;
and (3) that the conduct was sufficiently severe or pervasive to alter the conditions
of [her] employment and create an abusive working environment.” Kortan v.
California Youth Auth., 217 F.3d 1104, 1110 (9th Cir. 2000); Lyle v. Warner Bros.
Television Prods., 38 Cal. 4th 264, 279 (2006). “[W]hether an environment is
‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). But “that conduct must be
extreme to amount to a change in the terms and conditions of employment.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Cross testified that there was never religious insult directed towards her, and
based her harassment claim on three statements: Supervisor Morris telling Cross
“you can’t wear that” hijab; Supervisor Carroll telling Cross she could not wear
“that thing” on her head; and an unidentified bus operator remarking to Cross “now
I’m going to wear my hat for religious purposes” after Morris announced that the
uniform policy for unauthorized headwear would be enforced. But three allegedly
offensive comments over the course of nearly a year are not sufficiently severe or
pervasive to constitute a hostile work environment. See Vasquez v. Cnty. of Los
Angeles, 349 F.3d 634, 643–44 (9th Cir. 2003) (holding that “[t]wo isolated
7 24-6068 offensive remarks” combined with “other complaints about unfair treatment” were
“not severe or pervasive enough to create a hostile work environment”). Because
these “offhand comments[] and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the ‘terms and conditions of
employment,’” Faragher, 524 U.S. at 788, the district court did not err in granting
summary judgment for CCCTA’s motion on her harassment claim.1
AFFIRMED.
1 Cross urges the Ninth Circuit to recognize the theory of quid pro quo harassment in the context of religious discrimination, which essentially occurs when “a supervisor demands that an employee alter or renounce some religious belief in exchange for job benefits.” Weiss v. United States, 595 F. Supp. 1050, 1056 (E.D. Va. 1984) (citing Katz v. Dole, 709 F.2d 251 (4th Cir. 1983)). But even assuming such a theory applies here, Cross does not present sufficient evidence to support it.
8 24-6068