1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL GUNZENHAUSER, Case No. 3:22-cv-03406-WHO
8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. SUMMARY JUDGMENT
10 MERRICK B. GARLAND, Re: Dkt. No. 52 Defendant. 11
12 13 Plaintiff Michael Gunzenhauser filed this lawsuit against his former employer, the Bureau 14 of Prisons (“BOP”), alleging that the BOP and its employees discriminated against him based on 15 his disability when he was not selected for a new open position. The defendants move for 16 summary judgment. Gunzenhauser does not point to any evidence showing that the defendants’ 17 proffered reasons for not selecting him—that the other candidate was better qualified and came 18 more highly recommended—were mere pretext for discrimination. He therefore cannot meet his 19 burden under the McDonnell Douglas test, and there are no genuine disputes of material fact to 20 preclude summary judgment. For those and the following reasons, the defendants’ motion is 21 granted. 22 BACKGROUND 23 I. FACTUAL BACKGROUND 24 The following facts are undisputed. 25 Gunzenhauser was employed by the BOP from 1992 until 2018, when he retired. 26 Deposition of Michael Gunzenhauser (“Gunzenhauser Depo.”) [Dkt. No. 52-1] Ex. A, [Dkt. No. 27 53-1] Ex. A 26:18-20, 55:17-18. Around the year 2000, he was diagnosed with cancer and spent 1 operations due to the cancer. Id. 58:10-19. As a result of the cancer and surgeries, he now lives 2 with a colostomy bag. Id. 77:7-9. The colostomy bag requires him to use the restroom several 3 times a day, which often leaves behind an odor that other workers made comments about. Id. 4 82:11-83:4. 5 In 2011, Gunzenhauser—at the time an education specialist at the BOP—was assigned the 6 higher role of Regional Education Administrator (“REA”), on an “acting” basis. Id. 46:16-47:16, 7 51:13-21, 52:16-17; July ’16 Affidavit of Michael Gunzenhauser (“Gunz. Aff. July ’16”) [Dkt No. 8 52-1] Ex. B at 14. His supervisor was Joseph Moorhead. Gunzenhauser Depo. 103:12-18. 9 Gunzenhauser held the role until May 2012, Gunz. Aff. July ’16 at 14, when the role disappeared 10 due to restructuring, Gunzenhauser Depo. 52:16-24. Soon after, he moved to FCI Dublin, where 11 he worked from June 2013 until his retirement in 2018. Id. 55:3-23. His supervisor was Joanne 12 Tran. Id. 55:3-23. 13 In 2015, the BOP began soliciting applications for a new REA role. See Interrogatory of 14 Mary Mitchell (“Mitchell Rog.”) [Dkt. No. 52-1] Ex. D at 3. Gunzenhauser applied, along with 15 seven other candidates. Id. One of those candidates was Tran; another was Michael Chavez. See 16 id. at 4; Gunz. Aff. July ’16 at 13; Deposition of Mary Mitchell (“Mitchell Depo.”) [Dkt. No. 53- 17 1] Ex. E, [Dkt. No. 54-1] Ex. A 27:2-4; Deposition of Louis Milusnic (“Milusnic Depo.”) [Dkt. 18 No. 53-1] Ex. F, [Dkt. No. 54-1] Ex. B. 43:12-17. 19 The hiring official for the new REA role was Mary Mitchell. Mitchell Rog. at 3. In 20 addition to working at FCI Dublin at the same time, Mitchell and Gunzenhauser worked at the 21 BOP facility in Atlanta at the same time in the early 2000s, when Gunzenhauser was being treated 22 for cancer. Gunzenhauser Depo. 31:11-12, 58:2-9, 59:1-62:7. 23 Mitchell narrowed the candidate list down to Gunzenhauser and Chavez and decided to 24 request a second round of references. Mitchell Depo. 28:2-23. Louis Milusnic helped Mitchell 25 solicit references for applicants. Mitchell Rog. at 5, 7. Chavez’s first reference came from the 26 associate warden, and his second came from the warden. Mitchell Depo. 28:7-16. For 27 Gunzenhauser, the first reference came from the associate warden and the second from Moorhead. 1 Chavez’s references provided all “above average ratings.” Mitchell Rog. at 5. 2 Gunzenhauser’s first reference provided above average ratings, but his second reference, from 3 Moorhead, provided “average” ratings for “oral communication skills, written communication 4 skills, and responsiveness,” and stated that Moorhead would not recommend employing 5 Gunzenhauser as the new REA. Id. 6 Mitchell ultimately selected Chavez for the role. Id. at 4-5. She said that her selection was 7 based on Chavez’s superior references and higher education, as well as that Chavez had been 8 involved in the “development” of “innovative” programs and changes, while Gunzenhauser only 9 had experience “testing new programs” and reviewing existing ones. Id. 10 Gunzenhauser testified that Mitchell, Moorhead, and Milusnic did not make discriminatory 11 comments toward him about his disability. Gunzenhauser Depo. 125:1-11. He also did not recall 12 speaking to Mitchell or Milusnic about his colostomy bag. Id. 81:14-82:6, 83:20-22. 13 II. PROCEDURAL BACKGROUND 14 Following notification of his non-selection for the REA position, on March 14, 2016, 15 Gunzenhauser filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), 16 alleging the non-selection was due to disability discrimination and retaliation for previously filing 17 a complaint with the EEOC. [Dkt. No. 18] Ex. A. After some procedural turns, Gunzenhauser 18 received his Right to File a Civil Action on March 14, 2022. Id. Ex. B. He timely filed his initial 19 complaint in this court. [Dkt. No. 1]. 20 Gunzenhauser subsequently filed an amended complaint, and I granted in part and denied 21 in part the defendants’ motion to dismiss that complaint. (“Prior Order”) [Dkt. No. 26]. 22 Following that order, the sole remaining claim in this case is for disability discrimination in 23 violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (“Rehabilitation Act”). 24 The defendants filed a motion for summary judgment. (“Mot.”) [Dkt. No. 52]. 25 Gunzenhauser opposed. (“Oppo.”) [Dkt. No. 53]. The defendants replied. (“Repl.”) [Dkt. No. 26 54]. I held a hearing at which counsel for both parties appeared. 27 LEGAL STANDARD 1 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 2 law.” Fed. R. Civ. Proc. 56(a). In order to prevail, a party moving for summary judgment must 3 show the absence of a genuine issue of material fact with respect to an essential element of the 4 non-moving party’s claim, or to a defense on which the non-moving party will bear the burden of 5 persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has 6 made this showing, the burden then shifts to the party opposing summary judgment to identify 7 “specific facts showing there is a genuine issue for trial.” Id. The party opposing summary 8 judgment must then present affirmative evidence from which a jury could return a verdict in that 9 party’s favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986). 10 On summary judgment, the court draws all reasonable factual inferences in favor of the 11 non-movant. Id. at 255. In deciding a motion for summary judgment, “[c]redibility 12 determinations, the weighing of the evidence, and the drawing of legitimate inferences from the 13 facts are jury functions, not those of a judge.” Id. However, conclusory and speculative testimony 14 does not raise genuine issues of fact and is insufficient to defeat summary judgment. See 15 Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). 16 DISCUSSION 17 Gunzenhauser’s sole claim is for disparate treatment or “non-affirmative action” under 18 § 501 of the Rehabilitation Act, 29 U.S.C. § 791(g). Prior Order 7:8-11; see also Stewart v. 19 United States, No. C-99-4058 JCS, 2000 WL 1705657, at *4 (N.D. Cal. Oct. 10, 2000). 20 Discrimination claims brought under § 501 use the McDonnell Douglas1 burden-shifting 21 framework for Title VII discrimination claims.2 Stewart, 2000 WL 1705657, at *4 (citing Smith v. 22 1 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 23
2 The Ninth Circuit recently explained that for ADEA or Title VII discrimination suits at summary 24 judgment, the plaintiff “may proceed by [either] using the McDonnell Douglas framework . . . or alternatively, may simply produce direct or circumstantial evidence demonstrating that a 25 discriminatory reason more likely than not motivated the defendant’s contested conduct.” Opara v. Yellen, 57 F.4th 709, 721 (9th Cir. 2023) (citations and quotation marks omitted). The court 26 held that the second test could apply instead of the “prima facie” test at the first step of McDonnell Douglas. See id. at 721-23. The Ninth Circuit did not clearly apply that holding to claims of 27 discrimination under the Rehabilitation Act, though given other overlapping case law, it likely 1 Barton, 914 F.2d 1330, 1339 (9th Cir. 1990)); see also McCoy v. Dep’t of Army, 789 F. Supp. 2d 2 1221, 1229-30 (E.D. Cal. 2011) (same). First, the plaintiff must make a prima facie case of 3 discrimination under § 501, which requires demonstrating “(1) she is a person with a disability, (2) 4 who is otherwise qualified for employment, and (3) suffered discrimination because of her 5 disability.” Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007), superseded by 6 statute on other grounds (citing Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1058 (9th 7 Cir. 2005, as amended)). Second, “‘the burden shifts to the employer to articulate a legitimate, 8 nondiscriminatory reason’ for the employment decision.” Chand v. Regan, No. 21-CV-07773-RS, 9 2022 WL 2390996, at *3 (N.D. Cal. July 1, 2022) (quoting Campbell v. Brennan, No. 15-CV- 10 03582-JSC, 2018 WL 620186, at *5 (N.D. Cal. Jan. 30, 2018)); see also Raytheon Co. v. 11 Hernandez, 540 U.S. 44, 53-54 (2003). Third, “[i]f the employer offers a nondiscriminatory 12 reason, the burden returns to the plaintiff to show that the articulated reason is a ‘pretext’ for 13 discrimination.” Chand, 2022 WL 2390996, at *3 (quoting Campbell, 2018 WL 620186, at *5); 14 see also Thompson v. Donahoe, 961 F. Supp. 2d 1017, 1030 (N.D. Cal. 2013) (citing Stegall v. 15 Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003) (same). 16 Here, the defendants argue that Gunzenhauser failed to make a prima facie showing of 17 discrimination based on his non-selection, and even if he made such a showing, he did not and 18 cannot point to evidence that the defendants’ nondiscriminatory reason for the decision was 19 pretext. 20 I. STEP 1: PRIMA FACIE CASE OF DISCRIMINATION 21 To make a prima facie case of discrimination under § 501 of the Rehabilitation Act at the 22 summary judgment stage, “a plaintiff must show that: (1) at the time of the alleged discrimination, 23 the plaintiff had a disability within the meaning of the Rehabilitation Act; (2) except for her 24 disability, she was otherwise qualified for the position; and (3) she suffered an adverse 25 employment action because of her disability.” Thompson, 961 F. Supp. 2d at 1031-32 (citing 26 Walton, 492 F.3d at 1005). At the first step of the McDonnell Douglas analysis for § 501 claims, 27 1 “[t]he requisite degree of proof necessary to establish a prima facie case . . . on summary judgment 2 is minimal and does not even need to rise to the level of a preponderance of the evidence.” 3 McCoy, 789 F. Supp. 2d at 1229-30 (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 4 1994)). “Although the burden of proof remains on plaintiff throughout the burden-shifting 5 analysis, ‘as a general matter, the plaintiff in an employment discrimination action need produce 6 very little evidence in order to overcome an employer’s motion for summary judgment.’” Id. 7 (quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000)). “This 8 is because the ultimate question is one that can only be resolved through a searching inquiry-one 9 that is most appropriately conducted by a factfinder, upon a full record.” Id. (quoting Chuang, 10 225 F.3d at 1124). 11 The parties do not dispute that the first two elements are met and instead focus on the third: 12 whether Gunzenhauser pointed to evidence creating a genuine dispute of material fact that the 13 decision to not select him for the role was because of his disability. The defendants’ sole 14 argument is that Gunzenhauser cannot make a prima facie showing that he was denied the role 15 based on his disability because he cannot show that Mitchell, the deciding officer, knew of his 16 disability. See Mot. 9:7-10:20; Repl. 1:17-3:1. It is true that an employer must be aware of a 17 disability in order for any adverse action “to have been based, even in part, on [a plaintiff’s] 18 disability.” Marquez v. Glendale Union High Sch. Dist., No. CV-16-03351-PHX-JAT, 2018 WL 19 4899603, at *18 (D. Ariz. Oct. 9, 2018) (quoting Raytheon Co. v. Hernandez, 540 U.S. 44, 54 n.7 20 (2003)). And “if no part of the hiring decision turned on [the plaintiff’s] status as disabled, he 21 cannot, ipso facto, have been subject to disparate treatment.” Raytheon, 540 U.S. at 54 n.7. 22 But here, drawing all reasonable inferences in Gunzenhauser’s favor, there is sufficient 23 evidence from which it can be inferred that Mitchell knew of his disability and use of the 24 colostomy bag. For example, the defendants dispute whether Mitchell knew of Gunzenhauser’s 25 colostomy based on her visits to him in the hospital when he was being treated for cancer, but this 26 merely creates a genuine dispute of material fact. See Gunzenhauser Depo. 58:2-9, 81:14-24 27 (stating that Mitchell knew of Gunzenhauser’s “condition, my disability and, you know, the 1 Rhodes [Dkt. No. 53-1] Ex. B (stating that Mitchell visited Gunzenhauser in the hospital); 2 Mitchell Depo. 55:8-13. There is also evidence that Gunzenhauser’s colostomy bag was visible 3 “during the normal course of work” including because he “was allowed by management to wear 4 his shirt untucked”; that his use of the bag was known throughout the facility, including by staff; 5 and that anyone who met or came in contact with Gunzenhauser was aware of his colostomy bag. 6 See Declaration of Christopher Cruz (“Cruz Decl.”) [Dkt. No. 53-3] ¶¶ 7, 9-11; Declaration of 7 Pearl Wilkins (“Wilkins Decl.”) [Dkt. No. 53-4] ¶ 6. And there is evidence that his section of the 8 facility had only one restroom, Gunzenhauser used it often to clean his colostomy bag, he left 9 behind a strong odor whenever he used the restroom, and other staff members complained or 10 teased him about the odor. Gunzenhauser Depo. 82:11-83:4; Wilkins Decl. ¶ 9; see also Gunz. 11 Aff. July ’16 at 21 (indicating Gunzenhauser’s frequent use of the restroom); Cruz Decl. ¶ 10 12 (same). Combined with the evidence that Mitchell worked in-person at the facility and that she 13 personally interacted with Gunzenhauser at the facility, Wilkins Decl. ¶ 8, a reasonable factfinder 14 could infer that she saw and knew of his colostomy bag and therefore was aware of his disability. 15 See Marquez, 2018 WL 4899603, at *18 (“An employer knows an employee has a disability . . . 16 when the employer otherwise becomes aware of the condition, such as . . . by observation.” 17 (citation omitted)). Indeed, a reasonable factfinder could even infer that Mitchell knew of the odor 18 left by the bag because there was only one restroom in that department, and if Mitchell worked in- 19 person, she likely used the restroom at some point. 20 Accordingly, the defendants’ sole argument to this point is unpersuasive. Gunzenhauser 21 has otherwise made a prima facie case of discrimination based on his disability. 22 II. STEP 2: LEGITIMATE, NONDISCRIMINATORY REASON 23 Next, the burden shifts to the defendants to point to a legitimate, nondiscriminatory reason 24 for the adverse employment action. Chand, 2022 WL 2390996, at *3. The defendants meet their 25 burden by pointing to evidence that the chosen candidate, Chavez, was more qualified and had 26 better reviews than Gunzenhauser, and that Chavez was involved in the “development” of 27 “innovative” programs and changes while Gunzenhauser only had experience “testing new 1 the defendants meet their burden. See generally Oppo. This element is met. 2 III. STEP 3: PRETEXT FOR DISCRIMINATION 3 Finally, the burden shifts back to Gunzenhauser to point to evidence showing that the 4 defendants’ proffered reasons for the adverse employment action were mere pretext for 5 discrimination. See Chand, 2022 WL 2390996, at *3. A plaintiff can meet this burden of showing 6 pretext by pointing to direct evidence, circumstantial evidence, or “a combination of the[se] two 7 kinds of evidence.” Opara v. Yellen, 57 F.4th 709, 723 (9th Cir. 2023) (quoting Chuang, 225 F.3d 8 at 1127). “Under any approach, generally, ‘very little[] evidence is necessary to raise a genuine 9 issue of fact regarding an employer’s motive.’” Id. at 723-24 (citation omitted). But “where 10 abundant and uncontroverted independent evidence suggests that no discrimination occurred, 11 plaintiff’s creation of only a weak issue of fact as to whether the employer’s reason was untrue 12 will not suffice.” Id. at 724 (cleaned up) (quoting Reeves v. Sanderson Plumbing Prod., Inc., 530 13 U.S. 133, 148 (2000)); but see Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003), 14 as amended (Jan. 2, 2004) (“To show pretext using circumstantial evidence, a plaintiff must put 15 forward specific and substantial evidence challenging the credibility of the employer’s motives.” 16 (citations omitted)). 17 To make a sufficient showing of pretext to defeat summary judgment, a plaintiff must 18 show that “either . . . a discriminatory reason more likely motivated the employer or . . . that the 19 employer’s proffered explanation is unworthy of credence.” Villiarimo v. Aloha Island Air, Inc., 20 281 F.3d 1054, 1062 (9th Cir. 2002) (quoting Chuang, 225 F.3d at 1123); see also Brooks v. 21 Capistrano Unified Sch. Dist., 1 F. Supp. 3d 1029, 1038 (C.D. Cal. 2014) (same).3 “[A] disparate 22 treatment plaintiff can survive summary judgment without producing any evidence of 23 discrimination beyond that constituting h[er] prima facie case, if that evidence raises a genuine 24 issue of material fact regarding the truth of the employer’s proffered reasons.” Snead v. Metro. 25 Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th Cir. 2001) (first citing Chuang, 225 F.3d at 1127; 26
27 3 Opara, Villiarimo, and Vasquez were Title VII and ADEA cases but their explanations of the 1 and then citing Reeves, 530 U.S. at 146-47) (applying the standard under the ADA). 2 In Villiarimo, the Ninth Circuit held that where the employer fired the plaintiff based on 3 something a witness said about her actions, the plaintiff could not show pretext merely by showing 4 that the witness testimony was objectively false, so long as the employer “honestly believed its 5 reason for its actions.” 281 F.3d at 1063 (citation omitted). 6 Citing Villiarimo, the Honorable Donna M. Ryu rejected a plaintiff’s argument “that a 7 reasonable jury could find that it was improper” for her employer to take an adverse employment 8 action for the proffered reason. Anderson v. City & Cnty. of San Francisco, 169 F. Supp. 3d 995, 9 1017 (N.D. Cal. 2016). Judge Ryu explained that courts “only require that an employer honestly 10 believed its reason for its actions, even if its reason is ‘foolish or trivial or even baseless.’” Id. 11 (quoting Villiarimo, 281 F.3d at 1063); see also Flanagan v. City of Richmond, No. 14-CV-02714- 12 EMC, 2015 WL 5964881, at *17 (N.D. Cal. Oct. 13, 2015), aff’d, 692 F. App’x 490 (9th Cir. 13 2017) (“If Defendants honestly believed the Investigative Report’s findings, then pretext would 14 not be found absent evidence that Defendants ‘did not honestly believe its proffered reasons.’” 15 (quoting Villiarimo, 281 F.3d at 1063)). Judge Ryu also rejected the plaintiff’s argument that the 16 defendants’ investigation was deficient because the plaintiff pointed to no evidence that 17 “support[ed] an inference that [the investigation] violated [employer] policy or . . . that he 18 employed investigatory techniques that were different from those used in similar situations.” 19 Anderson, 169 F. Supp. 3d at 1017-18. 20 Gunzenhauser asserts that the defendants’ proffered reasons are pretextual for three 21 reasons: (1) the defendants departed from their standard hiring procedure with respect to obtaining 22 references; (2) Moorhead “admitted” his review of Gunzenhauser was inaccurate; and (3) the 23 proffered reasons are contradicted by the record, which shows that Gunzenhauser was more 24 qualified than the selectee. See Oppo. 15:19-21:16. None is sufficient to show pretext. 25 First, that Mitchell and Milusnic obtained a second reference from someone other than 26 Gunzenhauser’s first-line supervisor or the warden does not show that the defendants’ reliance on 27 that reference was pretext for discrimination. Gunzenhauser’s theory is apparently that the 1 Moorhead, who supervised Gunzenhauser when he previously held the role to which he was 2 applying again, instead of getting the reference from the warden or from Gunzenhauser’s first-line 3 supervisor, Tran, who was applying to the same role. While “[d]eviations from protocol and 4 procedural irregularities may give rise to an inference of pretext” under the McDonnell Douglas 5 test, here Gunzenhauser fails to provide any evidence that the reference check constituted such a 6 “deviation.” Bonillas v. United Air Lines, Inc., No. C 12-6574 SBA, 2014 WL 4087906, at *9 7 (N.D. Cal. Aug. 19, 2014) (citation omitted); see also Earl v. Nielson Media Research, Inc., 658 8 F.3d 1108, 1117 (9th Cir. 2011). Instead, he points to deposition testimony where Mitchell and 9 Milusnic say that they “typically” asked first-line supervisors for references, Milusnic Depo. 10 66:21-67:4; Mitchell Depo. 20:1-21, but sometimes would depart from that practice, including for 11 “acting” positions for chain of command reasons, Milusnic Depo. 19:2-22, and for situations 12 where an applicant’s first line supervisor applied to the same position, id. 43:12-17, 46:3-10; 13 Mitchell Depo. 26:23-27:4; cf. Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1214 (9th Cir. 14 2008) (holding that the defendant’s concession that he violated written company policy could be 15 evidence of intent to discriminate and should be considered by the jury). If anything, Milusnic’s 16 deposition established that they asked Moorhead for a reference because he supervised 17 Gunzenhauser in the REA position, which was the same position that Gunzenhauser was applying 18 for again. Milusnic Depo. 42:12-14, 44:9-13, 62:2-8. This does not show the defendants’ 19 reference request was pretextual, nor does it create a genuine dispute of fact regarding the truth of 20 the defendants’ proffered reasons for the employment decision. See Snead, 237 F.3d at 1094. 21 And importantly, Gunzenhauser’s reference theory is not logical given the record. See 22 Opara, 57 F.4th at 724 (noting that a “weak” issue of fact will not overcome “abundant and 23 uncontroverted independent evidence” of no discrimination (citations omitted)). To show 24 discriminatory intent based on the decision to choose Moorhead, Gunzenhauser would have to 25 point to evidence that Mitchell or Milusnic knew or had reason to believe that Moorhead’s 26 reference would not be strong. If they did not know it would be negative, or if they suspected it 27 might be positive, it would not make sense for them to choose him as a reference because the 1 establishes this knowledge or belief. Instead, the evidence shows that Moorhead previously 2 provided positive feedback regarding Gunzenhauser’s performance in that role, implying that 3 subsequent references could be strong. See [Dkt. No. 53-1] Ex. J (Moorhead’s “performance work 4 plan” review of Gunzenhauser in REA role). To the extent that Mitchell or Milusnic knew of this 5 prior feedback, which is not in the record, it would support the finding that they believed a 6 reference from Moorhead would be positive, not negative. Though of course Moorhead’s ultimate 7 reference did not support Gunzenhauser’s candidacy, this alone does not show discriminatory 8 intent on the part of Mitchell or Milusnic. Therefore, the record does not support Gunzenhauser’s 9 theory that the changed practice evidenced discriminatory intent. 10 Next, Moorhead’s supposed admission of falsity also fails to show pretext. As a 11 preliminary matter, the defendants are correct that the record does not show what Gunzenhauser 12 asserts—that Moorhead admitted his reference was inaccurate and he would have written a 13 different reference today—but instead shows that Moorhead repeatedly distinguished his 14 contemporaneous and strong performance evaluation of Gunzenhauser from the opinion-based 15 reference check that he gave two years later. See Deposition of Joseph Moorhead (“Moorhead 16 Depo.”) [Dkt. No. 53-2] Ex. E, [Dkt. No. 54-1] Ex. C, 43:21-45:18, 48:8-50:11, 53:23-54:11. But 17 even if a reasonable factfinder could interpret the record as Gunzenhauser suggests, Moorhead’s 18 alleged inaccuracy does not help Gunzenhauser’s case. Rather, like in Villiarimo, 281 F.3d at 19 1063, where the Ninth Circuit held that the plaintiff could not show pretext by showing that the 20 employer relied on false witness testimony unless she could show that the employer did not 21 honestly believe the testimony, here too Gunzenhauser cannot show pretext by showing that 22 Mitchell relied on Moorhead’s false reference unless Gunzenhauser puts forth evidence that 23 Mitchell did not “honestly believe[]” that reference. He does not do so.4 This argument therefore 24 4 In Anderson, Judge Ryu noted that “Title VII may still be violated where the ultimate 25 decisionmaker, lacking individual discriminatory intent, takes an adverse employment action in reliance on factors affected by another decisionmaker’s discriminatory animus.” 169 F. Supp. 3d 26 at 1019 (citation omitted). Gunzenhauser does not argue that this applies to § 501 claims, and he points to no evidence that it applies here or that Moorhead’s reference was motivated by 27 discriminatory animus. Rather, Gunzenhauser only asserts that Moorhead’s reference was 1 does not support a finding of pretext. 2 Finally, asserting that the record contradicts the defendants’ proffered reasons for 3 Gunzenhauser’s non-selection—essentially an argument about the merits of the decision—does 4 not create a genuine dispute regarding pretext here. See Oppo. 17:24-18:7; Gunzenhauser Depo. 5 119:1-120:10. First, even if Gunzenhauser’s documents show that his qualifications were “clearly 6 superior” to Chavez’s, which can be sufficient to create a dispute of fact regarding pretext, see 7 Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003), as amended 8 (citations omitted), Gunzenhauser does not point to evidence showing that Mitchell knew of any 9 of these “superior” qualifications. He asserts that Mitchell considered “experience as an educator, 10 leadership skills, involvement in national programs, and levels of responsibility . . . in[] her 11 selection decision,” Oppo. 18:3-5, and cites many documents that he says show his qualifications 12 were superior in these areas, id. 18:8-21:4, but he does not show that Mitchell knew of these 13 qualifications or had access to any of these documents. The investigative interrogatory that 14 Mitchell signed in 2016, which shows that Mitchell relied on the candidates’ “application 15 materials” and that she “reviewed all applications/resumes and reference check forms,” Mitchell 16 Rog. at 3-5, does not show that she reviewed or had access to any of the documents that 17 Gunzenhauser now relies upon. See also Mitchell Depo. 9:5-10:4, 14:23-15:14 (explaining that 18 Mitchell did not look at materials beyond the application packet, which was put together by the 19 “staffing section in Texas”). If Gunzenhauser cannot show that Mitchell knew he was better 20 qualified, he cannot show that she passed over him as a “clearly superior” candidate. 21 Second, Gunzenhauser’s argument parallels ones rejected in Villiarimo, Anderson, and 22 Flanagan. Those cases held that pretext cannot be established merely by showing the inaccuracy 23 or falsity of a report or witness testimony relied upon by a decision-maker in an adverse 24 employment action. See Villiarimo, 281 F.3d at 1063; Anderson, 169 F. Supp. 3d at 1017; 25 Flanagan, 2015 WL 5964881, at *17. As applied to Gunzenhauser’s argument, he cannot 26 establish pretext by arguing that Mitchell should have considered other materials that demonstrate 27 his qualifications, because that is akin to arguing that the underlying applications or materials 1 evidence that Mitchell did not honestly believe the information she relied upon from the 2 || “application materials,” “applications/resumes[,] and reference check forms,” [Dkt. No. 52-1] Ex. 3 D at -125-26, he does not meet his burden to establish pretext. See Anderson, 169 F. Supp. 3d at 4 1017. 5 Third, Gunzenhauser’s personal views about the superiority of his qualifications cannot 6 || establish a genuine dispute that the defendants’ reasons for choosing Chavez were pretextual. See, 7 e.g., Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996) (holding, under Title 8 || VII, “an employee’s subjective personal judgments of her competence alone do not raise a genuine 9 || issue of material fact” regarding pretext (citation omitted)). This argument, too, fails. 10 Accordingly, Gunzenhauser does not meet his burden to show that the defendants’ 11 proffered reasons for his non-selection for the REA role were pretext for discrimination. Because 12 || he does not point to supporting evidence, there is no genuine dispute of material fact to preclude 13 summary judgment. CONCLUSION 3 15 For those reasons, the defendants’ motion is GRANTED. a 16 IT IS SO ORDERED. 5 17 || Dated: March 14, 2024 18 : \f 19 ® Witliam H. Orrick 20 United States District Judge 21 22 23 24 25 26 27 28