Omar Bibi v. Vxl Enterprises, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2024
• Docket: 23-15367
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OMAR BIBI, No. 23-15367 D.C. No. 3:21-cv-04670-EMC Plaintiff-Appellant,

v. MEMORANDUM* VxL ENTERPRISES, LLC, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding

Submitted April 4, 2024** Pasadena, California

Before: R. NELSON, VANDYKE, and SANCHEZ, Circuit Judges.

Appellant Dr. Omar Bibi (“Dr. Bibi”), a U.S. citizen of Tunisian descent, is

a Caucasian Arab licensed physician. Dr. Bibi was contracted to provide medical

services at a San Quentin field hospital during the summer of 2020. He entered a

* 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). contract with Daniel & Yeager, LLC (“D&Y”), a locum tenens or temporary

staffing agency, to work at VxL Enterprises, LLC’s (“VxL”), collectively

(“Defendants”), field hospital under the direction of its Chief Medical Officer, Dr.

Andre Pennardt. Dr. Bibi alleges that Dr. Pennardt made several racially

derogatory remarks to him. He complained about that behavior. Before he

complained, however, Defendants decided to end their relationship with Dr. Bibi

for poor performance. Dr. Bibi sued, as relevant here, for violations of 42 U.S.C. §

1981. The district court granted VxL’s motion to dismiss claims against it and

D&Y’s motion for summary judgment on the § 1981 retaliation claim against it.

We have jurisdiction to review those judgments, 28 U.S.C. § 1291, and affirm.

1. Section 1981 ensures that “[a]ll persons . . . have the same right in every

State and Territory to make and enforce contracts . . . as is enjoyed by white

citizens.” 42 U.S.C. § 1981(a). This statute “offers relief when racial discrimination

blocks the creation of a contractual relationship, as well as when racial

discrimination impairs an existing contractual relationship, so long as the plaintiff

has or would have rights under the existing or proposed contractual relationship.”

Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006).

Dr. Bibi contends that he had a contractual relationship with VxL because he

acted as its subcontractor. Dr. Bibi cites a single email that he asserts establishes a

contractual relationship between him and VxL. But that email was sent by a third

2 23-15367 party, not by VxL. The only contract that Dr. Bibi entered that was related to his

work in the prison hospital was with D&Y. Considering this “in the light most

favorable to the nonmoving party,” Manzarek v. St. Paul Fire & Marine Ins. Co.,

519 F.3d 1025, 1031 (9th Cir. 2008), an email from a third party is not enough to

establish a contractual relationship between Dr. Bibi and VxL. Additionally, Dr.

Bibi cites no cases concluding that § 1981 reaches the relationship between

subcontractors and their principals. Because there is no evidence of a contractual

relationship between Dr. Bibi and VxL, or any other contract under which Dr. Bibi

alleges he has the right to bring a § 1981 claim against VxL, we affirm the district

court’s dismissal of all claims against VxL.

2. To survive summary judgment on a § 1981 claim, a plaintiff must first

establish a prima facie case of retaliation. See Metoyer v. Chassman, 504 F.3d 919,

931 n.6 (9th Cir. 2007), abrogated on other grounds by Nat’l Ass’n of Afr. Am.-

Owned Media v. Charter Commc’ns, Inc., 915 F.3d 617 (9th Cir. 2019). Plaintiffs

can establish retaliation by proving “(1) [they] engaged in a protected activity; (2)

[they] suffered an adverse employment action; and (3) there was a causal connection

between the two.” Surrell v. California Water Serv. Co., 518 F.3d 1097, 1108 (9th

Cir. 2008).

Though the parties agree that the first two elements are met, Dr. Bibi failed to

establish the third. No reasonable jury could find a causal connection between Dr.

3 23-15367 Bibi’s workplace complaint and his termination. The record shows that D&Y

decided to terminate Dr. Bibi before he complained about his treatment at work.

There were extant complaints that Dr. Bibi (1) regularly showed up late to his shifts,

(2) failed to properly follow security protocols, (3) declined to wear the required

protective gear, and (4) refused to treat a patient with urgent complaints about chest

pain. There was thus no causal relationship between a protected activity and an

adverse employment outcome.

Causation also fails under § 1981 when, as here, “adverse actions that [a party]

alleges” were “the next step in a continuing course of action that began before he

filed the internal complaint.” Hollowell v. Kaiser Found. Health Plan of the Nw.,

705 F. App’x 501, 504 (9th Cir. 2017) (unpublished). This reflects the difficulty in

establishing that a plaintiff was fired for complaining when the decision to fire him

was made before he complained. Time flows in only one direction. Here, Dr. Bibi’s

termination concluded a chain of events starting with emails discussing whether Dr.

Bibi should be terminated, continuing with more emails on the logistics of how the

termination should proceed, and concluding with Dr. Bibi’s termination. D&Y’s

decision to terminate its contract with Dr. Bibi came before he complained. No

reasonable juror could find causation sufficient to establish a prima facie case of

retaliation.

AFFIRMED.

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