NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 24 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
HUI XU, an individual, No. 23-35423
Plaintiff-Appellant, D.C. No. 6:20-cv-01201-MC
v. MEMORANDUM* LIGHTSMYTH TECHNOLOGIES, INC., a Delaware corporation; FINISAR CORPORATION, a Delaware corporation,
Defendants-Appellees.
Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding
Argued and Submitted August 20, 2024 Portland, Oregon
Before: CHRISTEN and NGUYEN, Circuit Judges, and EZRA,** District Judge.
Hui Xu appeals the district court’s order granting summary judgment to her
employer LightSmyth Technologies, Inc., and its parent company Finisar Corp., on
Xu’s claims under Title VII of the Civil Rights Act of 1964, the Americans with
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. Disabilities Act (“ADA”), and Oregon state law. Xu also appeals the district
court’s imposition of sanctions due to discovery misconduct.
Because the parties are familiar with the facts, we do not recount them here.
We review de novo the district court’s order granting summary judgment. Branch
Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017). We view
the evidence in the light most favorable to Xu and determine whether there are any
genuine issues of material fact and whether the district court correctly applied the
relevant substantive law. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922
(9th Cir. 2004). As a separate matter, we “review the district court’s … imposition
of discovery sanctions … for abuse of discretion.” Goodman v. Staples The Office
Superstore, LLC, 644 F.3d 817, 822 (9th Cir. 2011).
Because the district court applied the wrong standard to Xu’s Title VII
discrimination claim and retaliation claim, we vacate and remand the district
court’s judgment to consider the pleadings under the proper standard as detailed
below. We also remand the state-law whistleblower claim, which should be
considered independently from the state-law retaliation claim. We affirm in all
other respects the district court’s order dismissing Xu’s hostile work environment,
wrongful discharge, and disability discrimination claims. We also affirm the
district court’s imposition of sanctions.
2 I. Title VII Discrimination versus Title VII Retaliation
On April 17, 2024, the Supreme Court held, in Muldrow v. City of St. Louis,
601 U.S. 346 (2024), that Title VII discrimination claims do not require any
heightened requirement of a “material” or “tangible” impact. The Court
interpreted Title VII’s relevant text (to “discriminate against” an employee in the
“terms” or “conditions” of employment) as requiring an employee to prove only
that a challenged action caused the employee “some harm respecting an
identifiable term or condition of employment.” Id. at 354–55. The Court added
that an action can violate Title VII even if it does not cause a “significant” injury to
the employee. Id. at 355 (emphasis added). Applying this test, the Court held that
an alleged sex-based discriminatory transfer qualified as a “‘disadvantageous’
change in an employment term or condition.” Id. at 354, 359 (citation omitted).
The Muldrow Court noted how discrimination claims differ from retaliation
claims. Id. at 357–58. Under the retaliation provision, an employer may not take
action against an employee for bringing or aiding a Title VII charge. See § 2000e–
3(a). Citing Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53
(2006), the Court found that the retaliation provision applies only when the
retaliatory action is “materially adverse,” meaning that it causes “significant”
harm. 601 U.S at 357–58. The defendant in Muldrow suggested the Court apply
the retaliation standard to the anti-discrimination provision. Id. This request was
3 rejected by the Court. Id. Indeed, the Court noted that White adopted the standard
for reasons peculiar to the retaliation context. Id. at 357. The test was meant to
capture those employer actions serious enough to “‘dissuade[ ] a reasonable worker
from making or supporting a charge of discrimination.’” Id. (quoting White, 548
U.S. at 58). Importantly, the Court found that no such reasoning is applicable to
the discrimination bar. Id. at 357–58. Title VII’s anti-discrimination provision
prevents injury to individuals based on status without distinguishing between
significant and less significant harms. Id. at 358.
In light of Muldrow, a remand is appropriate for the Court to reconsider the
discrimination claims without requiring Xu to show a “material” or “tangible”
impact.
Moreover, the district court erred in not analyzing the discrimination and
retaliation claims under two distinct standards. See, e.g., Maxwell v. Kelly Servs.,
Inc., 730 F. Supp. 2d 1254, 1267 (D. Or. 2010) (analyzing discrimination and
retaliation claims separately).
For purposes of a retaliation claim, the plaintiff must show that a reasonable
employee would have found the challenged action materially adverse, which in this
context means it might well have “dissuaded a reasonable worker from making or
supporting a charge of discrimination.” White, 548 U.S. at 68. A determination as
to whether an action is materially adverse “depends upon the circumstances of the
4 particular case, and ‘should be judged from the perspective of a reasonable person
in the plaintiff’s position.’” Id. at 71 (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998)).
Because retaliation claims have a different scope of actionable conduct, the
district court erred by not conducting a separate analysis. The Supreme Court has
explained that the scope of actionable conduct under Title VII’s anti-discrimination
provision is “not coterminous” with that which is actionable under Title VII’s anti-
retaliation provision. White, 548 U.S. at 67; see also Campbell v. Haw. Dep’t of
Educ., 892 F.3d 1005, 1021 (9th Cir. 2018) (noting that “Title VII retaliation
claims may be brought against” a different “range of employer conduct than
substantive claims of discrimination”). In a singular inquiry adopting the pre-
Muldrow Title VII’s anti-discrimination standard and relying on disparate
treatment caselaw, the district court concluded that Xu’s performance review “does
not amount to an adverse employment action” for her retaliation claim. Shortly
thereafter, the district court considered in a singular inquiry whether the offer of
severance constituted actionable “discrimination or retaliation.”
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 24 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
HUI XU, an individual, No. 23-35423
Plaintiff-Appellant, D.C. No. 6:20-cv-01201-MC
v. MEMORANDUM* LIGHTSMYTH TECHNOLOGIES, INC., a Delaware corporation; FINISAR CORPORATION, a Delaware corporation,
Defendants-Appellees.
Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding
Argued and Submitted August 20, 2024 Portland, Oregon
Before: CHRISTEN and NGUYEN, Circuit Judges, and EZRA,** District Judge.
Hui Xu appeals the district court’s order granting summary judgment to her
employer LightSmyth Technologies, Inc., and its parent company Finisar Corp., on
Xu’s claims under Title VII of the Civil Rights Act of 1964, the Americans with
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. Disabilities Act (“ADA”), and Oregon state law. Xu also appeals the district
court’s imposition of sanctions due to discovery misconduct.
Because the parties are familiar with the facts, we do not recount them here.
We review de novo the district court’s order granting summary judgment. Branch
Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017). We view
the evidence in the light most favorable to Xu and determine whether there are any
genuine issues of material fact and whether the district court correctly applied the
relevant substantive law. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922
(9th Cir. 2004). As a separate matter, we “review the district court’s … imposition
of discovery sanctions … for abuse of discretion.” Goodman v. Staples The Office
Superstore, LLC, 644 F.3d 817, 822 (9th Cir. 2011).
Because the district court applied the wrong standard to Xu’s Title VII
discrimination claim and retaliation claim, we vacate and remand the district
court’s judgment to consider the pleadings under the proper standard as detailed
below. We also remand the state-law whistleblower claim, which should be
considered independently from the state-law retaliation claim. We affirm in all
other respects the district court’s order dismissing Xu’s hostile work environment,
wrongful discharge, and disability discrimination claims. We also affirm the
district court’s imposition of sanctions.
2 I. Title VII Discrimination versus Title VII Retaliation
On April 17, 2024, the Supreme Court held, in Muldrow v. City of St. Louis,
601 U.S. 346 (2024), that Title VII discrimination claims do not require any
heightened requirement of a “material” or “tangible” impact. The Court
interpreted Title VII’s relevant text (to “discriminate against” an employee in the
“terms” or “conditions” of employment) as requiring an employee to prove only
that a challenged action caused the employee “some harm respecting an
identifiable term or condition of employment.” Id. at 354–55. The Court added
that an action can violate Title VII even if it does not cause a “significant” injury to
the employee. Id. at 355 (emphasis added). Applying this test, the Court held that
an alleged sex-based discriminatory transfer qualified as a “‘disadvantageous’
change in an employment term or condition.” Id. at 354, 359 (citation omitted).
The Muldrow Court noted how discrimination claims differ from retaliation
claims. Id. at 357–58. Under the retaliation provision, an employer may not take
action against an employee for bringing or aiding a Title VII charge. See § 2000e–
3(a). Citing Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53
(2006), the Court found that the retaliation provision applies only when the
retaliatory action is “materially adverse,” meaning that it causes “significant”
harm. 601 U.S at 357–58. The defendant in Muldrow suggested the Court apply
the retaliation standard to the anti-discrimination provision. Id. This request was
3 rejected by the Court. Id. Indeed, the Court noted that White adopted the standard
for reasons peculiar to the retaliation context. Id. at 357. The test was meant to
capture those employer actions serious enough to “‘dissuade[ ] a reasonable worker
from making or supporting a charge of discrimination.’” Id. (quoting White, 548
U.S. at 58). Importantly, the Court found that no such reasoning is applicable to
the discrimination bar. Id. at 357–58. Title VII’s anti-discrimination provision
prevents injury to individuals based on status without distinguishing between
significant and less significant harms. Id. at 358.
In light of Muldrow, a remand is appropriate for the Court to reconsider the
discrimination claims without requiring Xu to show a “material” or “tangible”
impact.
Moreover, the district court erred in not analyzing the discrimination and
retaliation claims under two distinct standards. See, e.g., Maxwell v. Kelly Servs.,
Inc., 730 F. Supp. 2d 1254, 1267 (D. Or. 2010) (analyzing discrimination and
retaliation claims separately).
For purposes of a retaliation claim, the plaintiff must show that a reasonable
employee would have found the challenged action materially adverse, which in this
context means it might well have “dissuaded a reasonable worker from making or
supporting a charge of discrimination.” White, 548 U.S. at 68. A determination as
to whether an action is materially adverse “depends upon the circumstances of the
4 particular case, and ‘should be judged from the perspective of a reasonable person
in the plaintiff’s position.’” Id. at 71 (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998)).
Because retaliation claims have a different scope of actionable conduct, the
district court erred by not conducting a separate analysis. The Supreme Court has
explained that the scope of actionable conduct under Title VII’s anti-discrimination
provision is “not coterminous” with that which is actionable under Title VII’s anti-
retaliation provision. White, 548 U.S. at 67; see also Campbell v. Haw. Dep’t of
Educ., 892 F.3d 1005, 1021 (9th Cir. 2018) (noting that “Title VII retaliation
claims may be brought against” a different “range of employer conduct than
substantive claims of discrimination”). In a singular inquiry adopting the pre-
Muldrow Title VII’s anti-discrimination standard and relying on disparate
treatment caselaw, the district court concluded that Xu’s performance review “does
not amount to an adverse employment action” for her retaliation claim. Shortly
thereafter, the district court considered in a singular inquiry whether the offer of
severance constituted actionable “discrimination or retaliation.”
On remand, the district should apply Muldrow to the discrimination claim
and the retaliation standard outlined above to Xu’s retaliation claim under Or. Rev.
5 Stat. § 659A.030(1)(f).1 Further, in a retaliation claim, the plaintiff must engage in
a protected activity and demonstrate a causal link exists between the protected
activity and the adverse employment action, Manatt v. Bank of Am., 339 F.3d 792,
801 (9th Cir. 2003) (citation omitted), so the district court should also consider
whether Xu showed causation through temporal proximity between Xu’s
February 25, 2018, letter and the March 26, 2018, change in Xu’s status from
“Supply Chain Manager” to “Manufacturing Technician.” See Bell v. Clackamas
Cnty., 341 F.3d 858, 865–66 (9th Cir. 2003) (“Temporal proximity between
protected activity and an adverse employment action can by itself constitute
sufficient circumstantial evidence of retaliation in some cases.”).
II. Oregon State Law Claims
We also remand Xu’s whistleblower claim under Or. Rev. Stat. § 659A.199.
The whistleblower claim under Or. Rev. Stat. § 659A.199 must be analyzed
separately from Xu’s retaliation claim under Or. Rev. Stat. § 659A.030(1)(f). The
district court erred in not addressing the whistleblower claim as distinct from the
retaliation claim.
1 Xu brought her retaliation claim under Oregon law rather than Title VII, but courts construe Oregon’s anti-retaliation provision as “directly analogous” to Title VII’s anti-retaliation provision. Howard v. City of Coos Bay, 871 F.3d 1032, 1049–50 (9th Cir. 2017) (citing Portland State Univ. Chapter of Am. Ass’n of Univ. Professors v. Portland State Univ., 291 P.3d 658, 667 (Or. 2012) (en banc)); see McLaughlin v. Wilson, 449 P.3d 492, 501 (Or. 2019) (characterizing actionable retaliation as “identical” under Oregon law and Title VII).
6 It is true that courts analyze Oregon retaliation claims together with Title VII
retaliation. See, e.g., Meyer v. State ex rel. Or. Lottery, 292 Or. App. 647, 678
(2018). However, the same cannot be said for whistleblower claims under Or.
Rev. Stat. § 659A.199. See Burley v. Clackamas Cnty., 298 Or. App. 462, 465–66
(2019) (explaining that Or. Rev. Stat. § 659A.199 claims are statutory claims
whose elements derive from the text of the statute, not federal caselaw).
The retaliation statute and the whistleblowing statute cover different
categories of conduct. The retaliation statute covers conduct that “well might
dissuade[ ] a reasonable worker from making or supporting a charge of
discrimination.” White, 548 U.S. at 68. “But the whistleblowing statute covers
only a subset of that conduct; specifically, it covers conduct that relates to the
‘terms, conditions, or privileges of employment.’” Summerfield v. Oregon Liquor
Control Comm'n, 366 Or. 763, 782–83 (2020) (quoting Or. Rev. Stat.
§ 659A.199(1)). Also, the whistleblowing statute requires only the reporter’s
“good faith” belief in the illegality of the reported conduct. Or. Rev. Stat.
§ 659A.199(1).
Or. Rev. Stat. § 659A.199 (the whistleblower statute) should be analyzed
separately from Or. Rev. Stat. § 659A.030(1)(f) (the retaliation statute) as the two
claims can produce divergent results. See, e.g., Lindsey v. Clatskanie People’s
Util. Dist., 140 F. Supp. 3d 1077, 1097 (D. Or. 2015). As such, trial courts should
7 be clear about the differences between the elements of a retaliation claim under Or.
Rev. Stat. § 659A.030(1)(f) and a whistleblowing claim under Or. Rev. Stat.
§ 659A.199. See Summerfield, 366 Or. at 782–83.
III. Remaining Claims
We affirm the rest of the district court’s order dismissing Xu’s hostile work
environment, wrongful discharge, and disability discrimination claims. The
district court properly found that Xu did not provide facts indicating “severe or
pervasive” incidents of harassment to bring a hostile work environment claim. The
district also properly found that Xu could not prevail on a wrongful discharge
claim because she voluntarily decided to not return to work after taking unpaid
leave. Finally, we affirm the district court’s decision to dismiss Xu’s ADA claim
because Appellees engaged in an “interactive process” and provided all
accommodations required by law.
IV. Sanctions
On February 27, 2023, the district court entered a sanctions order for
discovery misconduct after Xu refused to honor her promises within the Search
Protocol Agreement.
We affirm the district court’s decision to impose sanctions under Rule 37(c),
which states that if a party fails to provide discoverable information as required by
Rule 26(a) or (e), a court, after providing an opportunity to be heard, “may order
8 payment of the reasonable expenses, including attorney’s fees, caused by the
failure,” or “may impose other appropriate sanctions” against the party. Fed. R.
Civ. P. 37(c)(1). The district court did not abuse its discretion when it found that
Xu attempted to conceal relevant communications during discovery and ordered
her to reimburse Defendants’ resulting costs and fees.
Accordingly, we affirm in part, vacate in part, and remand for further
proceedings consistent with this disposition.
AFFIRMED in part, VACATED in part, and REMANDED.