Scott McIntyre v. Arizona Board of Regents, et al.

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Scott McIntyre, No. CV-24-08151-PCT-DGC 10 Plaintiff, ORDER 11 v. 12 Arizona Board of Regents, et al., 13 Defendants. 14

15 16 Plaintiff Scott McIntyre, proceeding pro se, asserts employment discrimination and 17 retaliation claims against Defendants. Doc. 1. Plaintiff and Defendant Arizona Board of 18 Regents (“ABOR”) have filed motions for summary judgment. Docs. 70, 74. The motions 19 are fully briefed and no party requests oral argument. For reasons stated below, the Court 20 will deny the motions. 21 I. Background. 22 Plaintiff is a former faculty member at Arizona State University (“ASU”). In 2020, 23 ASU implemented a policy requiring mandatory COVID testing and health reporting for 24 students and staff. Plaintiff alleges that in January 2021, he told his supervisor and other 25 university officials that he thought the policy was unethical and potentially illegal. He 26 requested a religious exemption, which was denied. In October 2021, Plaintiff requested 27 a religious exemption from ASU’s COVID vaccine mandate, which was not granted. See 28 Doc. 1 at 2-4. 1 Plaintiff received a negative performance evaluation in April 2023, which covered 2 the 2022 academic year. In May 2023, ASU notified Plaintiff that his contract would not 3 be renewed for the 2024 academic year. Id. at 5. 4 Plaintiff filed a charge with the Equal Employment Opportunity Commission 5 (“EEOC”) in August 2023, alleging that ASU discriminated against him because of his 6 religion and retaliated against him for requesting religious accommodations. He received 7 a notice of right to sue from the EEOC in June 2024. See id. at 5-6. 8 Plaintiff brought this action alleging religious discrimination and retaliation in 9 violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act 10 (“ADA”), and the Religious Freedom Restoration Act (“RFRA”). Id. at 1. Plaintiff 11 asserted the claims against Defendants ABOR, ASU, President Michael Crow, Provost 12 Nancy Gonzalez, Executive Director Carla Harcleroad, Dean Sukhwant Jhaj, former 13 Director Erin Ellison, and ABOR counsel Samantha Blevins. Id. 14 ABOR, ASU, Harcleroad, Jhaj, Crow, and Gonzales filed a partial motion to 15 dismiss. Doc. 21. The Court granted the motion and dismissed Plaintiff’s ADA and RFRA 16 claims. Doc. 28 at 4-6. The Court also dismissed Plaintiff’s untimely Title VII claims 17 regarding the denial of religious accommodations from ASU’s COVID policies in January 18 and October 2021. Id. at 3-4. Because the Title VII claims are asserted only against 19 ABOR, the Court dismissed ASU, Harcleroad, Jhaj, Crow, and Gonzales from the case. 20 Id. at 6. The claims against Ellison and Blevins were dismissed because Plaintiff failed to 21 serve them. Id.; see Docs. 17, 21 at 3. The remaining claims are Plaintiff’s Title VII 22 religious discrimination and retaliation claims against ABOR based on the nonrenewal of 23 his contract in May 2023 and other potential adverse employment actions taken after 24 October 6, 2022. Doc. 28 at 4 n.4.1 25

26 1 The parties stipulated that the Title VII claims are asserted only against ABOR 27 because ASU is a non-jural entity. Docs. 20, 23. They further stipulated that Plaintiff no longer seeks relief under Executive Order 11246, 21 C.F.R. § 50, 45 C.F.R. § 50, or the 28 Belmont Report mentioned in his complaint. Docs. 20, 23; see Doc. 1 at 1. 1 II. Title VII Religious Discrimination and Retaliation Claims. 2 Title VII makes it an unlawful employment practice for an employer to discriminate 3 against an employee because of his religion. 42 U.S.C. § 2000e-2(a). Title VII also makes 4 it unlawful for an employer to retaliate against an employee because the employee opposed 5 an unlawful employment practice. Id. § 2000e-3(a). 6 Under the applicable burden-shifting framework, the plaintiff has the initial burden 7 of establishing a prima facie case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 8 802 (1973). The plaintiff meets this burden on a disparate treatment claim by showing: 9 (1) he is a member of a protected class; (2) he was qualified for his position; (3) he 10 experienced an adverse employment action; and (4) similarly situated individuals outside 11 his protected class were treated more favorably, or other circumstances surrounding the 12 adverse employment action give rise to an inference of discrimination. Peterson v. 13 Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004).2 For a retaliation claim, the 14 plaintiff must show (1) he engaged in a protected activity; (2) his employer subjected him 15 to an adverse employment action; and (3) a causal link exists between the protected activity 16 and the adverse action. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). 17 If the plaintiff makes a prima facie showing of discrimination or retaliation, “the 18 burden shifts to the [d]efendant to offer a legitimate (non-discriminatory, non-retaliatory) 19 reason for the adverse employment action.” Johnson v. City of San Diego, No. 3:17-CV- 20 00410-L-NLS, 2018 WL 3817979, at *4 (S.D. Cal. Aug. 10, 2018) (citing Fonseca v. Sysco 21 Food Servs. of Ariz., Inc., 374 F.3d 840, 849 (9th Cir. 2004)). If the employer satisfies this 22 burden, then the burden shifts back to the plaintiff to show that the defendant’s proffered 23 reason was a mere pretext for unlawful discrimination or retaliation. Ray, 217 F.3d at 1240; 24

25 2 “A claim for religious discrimination under Title VII can be asserted under several 26 different theories, including disparate treatment and failure to accommodate.” Guthrey v. Cal. Dep’t of Corr. & Rehab., No. 1:10-CV-02177-AWI, 2012 WL 2499938, at *5 (E.D. 27 Cal. June 27, 2012) (citing Peterson, 358 F.3d at 603). As noted, the Court has dismissed Plaintiff’s Title VII claims regarding the denial of religious accommodations from ASU’s 28 COVID policies. Doc. 28 at 3-4. 1 Bergene v. Salt River Project Agr. Imp. & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2 2001). 3 III. Summary Judgment Standard. 4 Plaintiff and ABOR each move for summary judgment on Plaintiff’s Title VII 5 claims for religious discrimination and retaliation. Docs. 70, 74. Summary judgment is 6 appropriate if the moving party shows there is no genuine dispute as to any material fact 7 and the party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Summary 8 judgment is also appropriate against a party who “fails to make a showing sufficient to 9 establish the existence of an element essential to that party’s case, and on which that party 10 will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 11 The moving party “bears the initial responsibility of informing the court of the basis 12 for its motion, and identifying those portions of [the record] which it believes demonstrate 13 the absence of a genuine issue of material fact.” Id. Only disputes over facts that might 14 affect the outcome of the suit will preclude the entry of summary judgment, and the 15 disputed evidence must be “such that a reasonable jury could return a verdict for the 16 nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court 17 must view the evidence in the light most favorable to the nonmoving party, Matsushita 18 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and draw justifiable 19 inferences in that party’s favor, Anderson, 477 U.S. at 255. 20 IV. Plaintiff’s Motion. 21 A. Plaintiff Failed to Comply with Local Rule of Civil Procedure 56.1. 22 Plaintiff’s motion does not comply with the Court’s Local Rule of Civil Procedure 23 governing summary judgment motions. Local Rule 56.1 provides: 24 Any party filing a motion for summary judgment must file a statement, 25 separate from the motion and memorandum of law, setting forth each material fact on which the party relies in support of the motion. . . . Each 26 material fact in the separate statement must be set forth in a separately 27 numbered paragraph and must refer to a specific admissible portion of the record where the fact finds support (for example, affidavit, deposition, 28 1 discovery response, etc.). A failure to submit a separate statement of facts in this form may constitute grounds for the denial of the motion. 2 3 LRCiv. 56.1(a). At the status conference on October 3, 2025, Defendant’s counsel sought 4 to suspend the requirement of a separate statement of facts. The Court denied the request 5 and instructed counsel and Plaintiff that all requirements of Local Rule 56.1 are to be 6 followed. See Docs. 69, 80 at 6. Plaintiff has filed no statement of facts separate from his 7 motion, and many of the facts asserted in his motion lack evidentiary support or cite to the 8 wrong document. 9 Plaintiff’s motion contains a background section with no citations to the record 10 (Doc. 70 at 2-6), a legal basis section (id. at 6-7), a statement of facts section (id. at 7-18), 11 and a summary that appears to be Plaintiff’s memorandum of law (id. at 18-20). Local 12 Rule 56.1 also provides that the memorandum of law in support of a motion for summary 13 judgment “must include citations to the specific paragraph in the statement of facts that 14 supports assertions made in the memoranda regarding any material fact on which the party 15 relies[.]” LRCiv 56.1(e). Plaintiff’s memorandum of law contains no citations to the 16 statement of facts contained in his brief. Doc. 70 at 18-20. 17 Plaintiff argues in his reply that the factual statement portion of his motion was 18 intended to comply with LRCiv 56.1 – that he did not know the statement of facts had to 19 be contained in a separate document. Doc. 85 at 8-11. But even if the Court accepts this 20 assertion and overlooks Plaintiff’s failure to provide a separate document containing his 21 statement of facts, his statement is still deficient. The statement of facts section of his 22 motion cites various documents by Bates number, but the documents actually attached to 23 Plaintiff’s brief – spanning more than 400 pages – are not identified by exhibit number or 24 organized so they can be found easily. See Docs. 70-1 to 70-60. And it appears many 25 documents cited by Plaintiff are not found in his attached fact documents, such as 26 DF000184, DF001196, DF001182, DF000238, DF000329, and DF000661, to name a few. 27 This Circuit has made clear that a district court “need not examine the entire file for 28 evidence establishing [the absence of] a genuine issue of fact, where the evidence is not set 1 forth in the [moving] papers with adequate references so that it could conveniently be 2 found.” Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see also 3 Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (explaining that the district court has 4 no responsibility on summary judgment to “scour the record in search of a genuine issue 5 of triable fact”). 6 The Court will deny Plaintiff’s motion for failure to provide a statement of facts that 7 aids the Court in ruling on his motion. See Brummer v. Ryan, No. CV-18-01146-PHX- 8 DGC (JZB), 2020 WL 888289, at *5 (D. Ariz. Feb. 24, 2020) (denying pro se plaintiff’s 9 motion where he failed to file a separate statement of facts that refers to the specific 10 admissible portion of the record where the facts find support); see also Hinton v. Cnty. of 11 Cochise, No. CV-23-00482-TUC-JAS (MSA), 2024 WL 2132470, at *3 (D. Ariz. May 13, 12 2024) (“Most of [Plaintiffs’] statements of fact are not supported with references to specific 13 admissible portions of the record, and their memorandum of law does not contain ‘citations 14 to the specific paragraph in the statement of facts that supports assertions made in the 15 memoranda.’ LRCiv 56.1(e). As a result, the Court will strike Plaintiffs’ Motion.”); 16 Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (holding that the district court did not err 17 in dismissing a pro se plaintiff’s civil rights complaint for failing to comply with a local 18 rule).3 19 B. Plaintiff Has Not Shown that He Is Entitled to Summary Judgment. 20 Even if the Court overlooks Plaintiff’s failure to provided a helpful statement of 21 facts, his motion is not well taken. The summary judgment standard operates differently 22 depending on whether the moving or non-moving party has the burden of proof at trial.

23 3 The Court recognizes that Plaintiff is proceeding pro se and made an effort to 24 comply with Local Rule 56.1. See Doc. 85 at 8-9. But pro se litigants still must follow the rules and should not be treated more favorably than parties represented by counsel. Harris 25 v. Ariz. Bd. of Regents, No. CV16-4029 PHX DGC, 2017 WL 10635896, at *2 (D. Ariz. Mar. 13, 2017); see also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986) (“Pro se litigants 26 must follow the same rules of procedure that govern other litigants.”); Carter v. Comm’r of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986) (“Although pro se, [plaintiff] is 27 expected to abide by the rules of the court in which he litigates.”); Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986) (“[P]ro se litigants in the ordinary civil case should not be 28 treated more favorably than parties with attorneys of record.”). 1 See Celotex, 477 U.S. at 322-23. When the movant – Plaintiff in this case – bears the 2 burden of proof on a claim at trial, “the movant ‘must establish beyond controversy every 3 essential element’ of the claim based on the undisputed material facts.” Navajo Health 4 Foundation-Sage Mem’l Hosp. Inc. v. Razaghi Dev. Co., 800 F. Supp. 3d 955, 963 (D. 5 Ariz. 2025) (quoting S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 6 2003)); see Est. of Taschek v. Fid. Life Ass’n, 740 F. Supp. 3d 1072, 1083 (D. Nev. 2024) 7 (“When the party moving for summary judgment would bear the burden of proof at trial 8 (typically the plaintiff), he must come forward with evidence that would entitle him to a 9 directed verdict if the evidence went uncontroverted at trial.” (citation modified)); Hester 10 v. Baca, No. CV 10-7854-JVS E, 2012 WL 2891084, at *4 (C.D. Cal. June 1, 2012) 11 (“[B]ecause Plaintiff bears the burden of proof at trial, to obtain summary judgment on his 12 motion Plaintiff must produce evidence sufficient for the Court to hold that no reasonable 13 trier of fact could find other than for Plaintiff.”). If the movant fails to make this convincing 14 showing, “summary judgment is inappropriate, even if the non-moving party has not 15 introduced contradictory evidence in response. Thus, it is generally a ‘heavy burden’ for 16 a plaintiff to seek summary judgment.” Navajo Health, 800 F. Supp. 3d at 963 (quoting 17 Barnes v. Sea Hawaii Rafting, LLC, 889 F.3d 517, 538 (9th Cir. 2018)). 18 Plaintiff contends that he has established a prima facie case of discrimination and 19 retaliation. Docs. 70 at 1, 18; 85 at 11. But he must show more than a prima facie case to 20 obtain summary judgment. See Tex. Dep’t of Cmty. Affairs. v. Burdine, 450 U.S. 248, 253 21 (1981); Gessele v. Jack in the Box Inc., 174 F.4th 1108, 1123 (9th Cir. 2026); Isiramen v. 22 Yuma Reg’l Med. Ctr., No. CV-19-04838-PHX-DJH, 2021 WL 9879380, at *6 (D. Ariz. 23 Aug. 12, 2021). “[P]laintiff must set forth evidence establishing beyond controversy the 24 required elements of his claims.” Claiborne v. Blauser, No. 2:10-CV-02427 LKK, 2012 25 WL 6005717, at *4 (E.D. Cal. Nov. 30, 2012). Plaintiff presents no such conclusive 26 evidence, and ABOR genuinely disputes many of the material facts on which he relies. See 27 Docs. 70 at 7-18, 81 at 2-10. 28 1 Because Plaintiff has not met his heavy burden of showing that he is entitled to 2 summary judgment on his discrimination and retaliation claims, the Court will deny his 3 motion. See Navajo Health, 800 F. Supp. 3d at 963; Stetter v. Blackpool, LLC, No. CV- 4 09-1071-PHX-DGC, 2011 WL 4089444, at *1 (D. Ariz. Sept. 14, 2011) (denying summary 5 judgment where the plaintiff “presented no evidence ‘affirmatively demonstrating that no 6 reasonable trier of fact could find other than for him’” (quoting Soremekun v. Thrifty 7 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007))). 8 V. ABOR’s Motion. 9 A. Religious Discrimination Claim. 10 ABOR argues that Plaintiff’s religious discrimination claim fails because he is not 11 a member of a protected class, there is no evidence that supports an inference of 12 discrimination, and there is no evidence that the stated reasons for the adverse employment 13 actions were a pretext for religious discrimination. Doc. 74 at 10-15.4 14 1. Member of a Protected Class. 15 Title VII makes it unlawful for an employer to discriminate against any individual 16 “because of such individual’s . . . religion[.]” 42 U.S.C. § 2000e-2(a). “The term ‘religion’ 17 includes all aspects of religious observance and practice, as well as belief[.]” Id. § 2000e(j). 18 “Therefore, a plaintiff is a member of a protected class if he holds a religious belief.” 19 Hembd v. Roche, No. CV 05-0735-PHX-DKD, 2006 WL 8440595, at *2 (D. Ariz. Mar. 31, 20 2006); see also Damiano v. Grants Pass Sch. Dist. No. 7, 140 F.4th 1117, 1155 (9th Cir. 21 2025) (“On the first element, the district court held that Plaintiffs are not members of a 22 protected class because even ‘assuming that being a Christian is a protected class, Plaintiffs 23 do not cite to any Bible passage or scripture to support the views [they] expressed[.]’ This 24 was legal error. Discrimination on the basis of religious beliefs is discrimination on the 25 basis of religion for purposes of Title VII.”). 26

27 4 For purposes of summary judgment, ABOR does not dispute that Plaintiff was qualified for his position and experienced an adverse employment action (the second and 28 third elements of a prima facie case of discrimination). 1 ABOR contends that Plaintiff’s opposition to ASU’s COVID mandates was secular 2 and none of his communications regarding the mandates was religious in nature. Doc. 74 3 at 10. The Court does not agree. 4 In January 2021, Plaintiff requested a religious exemption from ASU’s COVID 5 testing mandate. See Docs. 1 at 3, 75-3 at 79. Plaintiff indicated that the mandate goes 6 against his conscience, which was informed by his “religious beliefs[.]” Doc. 75-3 at 79. 7 In October 2021, Plaintiff completed a request for religious accommodation form in which 8 he explained that his body is a gift from God and he would suffer spiritual harm if he were 9 to disregard his deeply and long-held spiritual beliefs. Id. at 81. He further explained that, 10 in addition to the unethical procedures used to develop and test the COVID vaccines, he 11 would equate being forced to take the vaccines to sodomizing his body. Id. Plaintiff made 12 clear that he used prayer and study to determine that he could not receive the vaccine. Id. 13 He also quoted various Bibilcal scriptures, including: “Don’t you realize your bodies are 14 actually parts of Christ?” Id. (citing 1 Corinthians 6:15). 15 In November 2021, Plaintiff and Ellison exchanged emails in which Plaintiff 16 confirmed that he was prevented from receiving a COVID vaccine because of his 17 “sincerely held religious beliefs.” Id. at 84. Plaintiff clarified that his statement about 18 ethics should not be interpreted as the reason for his accommodation request. Id. Ellison 19 explained that ASU was not challenging Plaintiff’s religious beliefs, but sought further 20 clarification. Id. at 83-84. Ellison stated that while it was not necessary for Plaintiff to use 21 particular language or to rely on religious texts, ASU needed sufficient information to 22 assess whether his beliefs were religious in nature, which could include strongly held 23 ethical or moral beliefs. Id. at 83.5 24 Construing the evidence in the light most favorable to Plaintiff, as the Court must 25 on ABOR’s summary judgment motion, the Court concludes that there is a triable issue on 26

27 5 Plaintiff disputes ABOR’s assertion that he failed to provide necessary information ASU requested. Docs. 75 ¶ 37, 78 ¶ 37. His accommodation request was neither granted 28 nor denied because the vaccination requirement eventually was dropped. Doc. 75 ¶ 36. 1 whether Plaintiff’s opposition to the COVID mandates was based, at least in part, on his 2 religious beliefs. Congress defined “religion” to include “all aspects of religious 3 observance and practice, as well as belief.” 42 U.S.C. § 2000e(j); see EEOC v. 4 Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 772 (2015). Implementing that broad 5 definition, the EEOC’s regulations explain that “[i]n most cases, whether or not a practice 6 or belief is religious is not at issue.” 29 C.F.R. § 1605.1. But when the nature of belief is 7 at issue, religious practices “include moral or ethical beliefs” that parallel traditional 8 religious views. Id. (citing United States v. Seeger, 380 U.S. 163, 176 (1965); Welsh v. 9 United States, 398 U.S. 333, 339 (1970)); see also Damiano, 140 F.4th at 1155-56 (“[I]n 10 the context of Free Exercise claims, it is well-established that an individual may sincerely 11 hold a religious belief that is not reflected in a biblical passage or scripture. . . . We see no 12 basis for adopting a different rule in the Title VII context.”); Hobbie v. Unemployment 13 Appeals Comm’n of Fla., 480 U.S. 136, 144 n.9 (1987) (“So long as one’s faith is 14 religiously based at the time it is asserted, it should not matter . . . whether that faith derived 15 from revelation, study, up-bringing, gradual evolution, or some source that appears entirely 16 incomprehensible.” (quoting Callahan v. Woods, 658 F.2d 679, 687 (9th Cir. 1981))). 17 Here, Plaintiff’s opposition to the COVID mandates was based on his asserted 18 sincere beliefs that his body is a gift from God and complying with the mandates would 19 result in spiritual harm. Doc. 75-3 at 81. The fact that Plaintiff also held strong ethical or 20 moral beliefs about the mandates does not preclude a finding that his opposition was 21 religious in nature. “Bona fide religious beliefs ‘include moral or ethical beliefs as to what 22 is right and wrong which are sincerely held with the strength of traditional religious 23 views.’” Langford v. Bell Motors LLC, No. CV-16-02930-PHX-DGC, 2018 WL 333437, 24 at *3 (D. Ariz. Jan. 9, 2018) (quoting 29 C.F.R. § 1605.1). 25 ABOR notes that Plaintiff does not belong to any specific religious group and does 26 not attend religious services. Doc. 74 at 10. But these are not requirements of a sincerely 27 held religious belief. “Title VII protects more than the observance of [the] Sabbath or 28 practices specifically mandated by an employee’s religion: The very words of the statute 1 (‘all aspects of religious observance and practice’) leave little room for such a limited 2 interpretation.” Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993) (citation 3 modified); see also 29 C.F.R. § 1605.1 (“The fact that no religious group espouses such 4 beliefs or the fact that the religious group to which the individual professes to belong may 5 not accept such belief will not determine whether the belief is a religious belief of the 6 employee.”). 7 ABOR cites Detwiler v. Mid-Columbia Medical Center, 156 F.4th 886 (9th Cir. 8 2025), a case where the plaintiff believed the COVID testing swab was harmful because it 9 had been dipped in a carcinogen. Detwiler, 156 F.4th at 891. The Ninth Circuit concluded 10 that this belief was “personal and secular, premised on [the plaintiff’s] interpretation of 11 medical research,” and not “a case where a religious belief overlaps with a medical one.” 12 Id. at 895. The Court does not reach the same conclusion here. “At summary judgment, 13 the degree of proof necessary to establish a prima facie case is ‘minimal and does not even 14 need to rise to the level of a preponderance of the evidence.’” Damiano, 140 F.4th at 1155 15 (quoting Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002)). Plaintiff has identified 16 sufficient evidence that his opposition to ASU’s COVID mandates was grounded in his 17 sincerely held religious beliefs. See Doc. 75-3 at 81-84. The Court declines to accept 18 ABOR’s argument that Plaintiff has failed to make a prima facie showing that he is a 19 member of a protected class. 20 2. Evidence Supporting an Inference of Discrimination. 21 ABOR argues that Plaintiff cannot meet the fourth element of his prima facie case 22 because there is no evidence showing that his religion had anything to do with the 2023 23 performance evaluation or the subsequent nonrenewal of his contract. Doc. 74 at 12-13. 24 Specifically, ABOR contends that there is no evidence the decisionmakers – Harcleroad, 25 Jhaj, and Crow – had any idea what religion Plaintiff practiced. Id. at 12 (citing Doc. 75 26 ¶¶ 48, 51, 54). Plaintiff disputes this contention and explains that he repeatedly voiced 27 ethical concerns about the COVID mandates, which reasonably would be understood to 28 include religious ethics. Doc. 78 at 34-37. Plaintiff cites evidence showing that Harcleroad 1 and Jhaj were aware of his request for an accommodation by January 2022. Id. at 38-39; 2 Doc. 75-3 at 113-18. Plaintiff also notes that the decisionmakers clearly had knowledge of 3 his request for a religious accommodation before the hearing on the nonrenewal in October 4 2023 and before a final decision was made in April 2024. Doc. 78 at 35-41. 5 As noted, the degree of proof necessary to establish a prima facie case is minimal. 6 See Damiano, 140 F.4th at 1155. And summary judgment generally is not appropriate if a 7 party’s knowledge or state of mind is at issue. See Braxton-Secret v. Robins Co., 769 F.2d 8 528, 531 (9th Cir. 1985) (reversing summary judgment and stating that “[q]uestions 9 involving a person’s state of mind . . . are generally factual issues inappropriate for 10 resolution by summary judgment”); Consol. Elec. Co. v. United States, 355 F.2d 437, 438 11 (9th Cir. 1966) (reversing summary judgment and stating that “[w]hen an issue requires 12 determination of state of mind, it is unusual that disposition may be made by summary 13 judgment”); E.E.O.C. v. Luby’s Inc., No. CV 04-1094 PHX-DGC, 2005 WL 3560616, at 14 *6 (D. Ariz. Dec. 29, 2005) (“Luby’s argues that it had no obligation to accommodate Ms. 15 Case’s disability because it had no knowledge about her disability. As noted above, 16 however, Luby’s knowledge is a factual issue to be resolved by the jury.”); Milun v. Ariz. 17 Bd. of Regents, No. CV-07-1555-PHX-DGC, 2009 WL 890984, at *5 (D. Ariz. Apr. 2, 18 2009) (“Whether Dean Young was aware of Plaintiff’s maternity leave when he 19 recommended a terminal contract is a question for the jury.”). 20 The Court cannot accept ABOR’s argument that there is no evidence supporting an 21 inference of discrimination. 22 3. Evidence of Pretext. 23 As noted above, if the plaintiff establishes a prima facie case, the burden shifts to 24 the defendant to articulate a legitimate, nondiscriminatory reason for the adverse 25 employment action. See McDonnell Douglas, 411 U.S. at 802. If the defendant does so, 26 the plaintiff must show that the articulated reason is a pretext for unlawful discrimination 27 by “either directly persuading the court that a discriminatory reason more likely motivated 28 the employer or indirectly by showing that the employer’s proffered explanation is 1 unworthy of credence.” Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 2 658-59 (9th Cir. 2002) (citation modified). 3 ABOR has met its burden of articulating a legitimate, nondiscriminatory reason for 4 the adverse employment actions. ABOR states that Plaintiff received a negative 5 performance evaluation and did not have his contract renewed because his syllabi and 6 course content remained deficient despite several opportunities to rectify the issues, and 7 his engagement in professional development and community service was deficient. 8 Doc. 74 at 6-9, 13-14. 9 Plaintiff has presented evidence showing that Harcleroad, his sole evaluator, had 10 antagonism toward him, making Harcleroad’s testimony potentially biased and 11 impeachable. Doc. 78 at 4, 43; see Docs. 70-2 at 6-7, 70-13 at 45. Plaintiff also presents 12 evidence that, according to Harcleroad, his syllabi complied with ASU’s guidelines, and 13 that Harcleroad deviated in her evaluation of Plaintiff relative to other faculty members. 14 Doc. 78 at 5, 10, 17-19, 40; see Docs. 70-13 at 32-33; 70-14 at 12-15; 70-17 – 70-19. 15 Significantly, Plaintiff cites to the report from the Committee on Academic Freedom and 16 Tenure (“CAFT”), which determined that the nonrenewal of Plaintiff’s contract was unfair 17 and resulted from an unduly scrupulous review of his syllabi. Doc. 78 at 9-10, 17. The 18 CAFT report explains: 19 CAFT determined that unfair or unequal application of University policy 20 resulted in the non-renewal of Dr. McIntyre’s multi-year contract. The non- renewal was allegedly based in part on critical reviews of Dr. McIntyre’s 21 course syllabi over time, and his supposed failure to correct the deficiencies 22 in the syllabi of which he was advised. CAFT found that Dr. McIntyre’s syllabi were subjected to a greater level of scrutiny than the syllabi of other 23 Lake Havasu faculty. Whether or not the content of Dr. McIntyre’s syllabi met appropriate standards, the review process applied to them was found by 24 CAFT to have been unduly scrupulous under the circumstances in a manner 25 creating unfairness as compared to the review applied to other Lake Havasu faculty. This created the appearance of unfairness and was found to have 26 unjustly contributed to the non-renewal of Dr. McIntyre’s multi-year 27 appointment. 28 1 | Doc. 70-14 at 3. CAFT recommended that Plaintiff's grievance be sustained, finding that the “non-renewal was based, in part, on a syllabi review that was inconsistent with the manner that other ASU Lake Havasu faculty were evaluated and occurred in a manner that created unfairness.” Jd. at 25-26. Plaintiff also presents evidence that no multi-year 5 | appointed faculty member was nonrenewed due to reduced service or professional 6| activities during the COVID pandemic in 2020-2022. Docs. 70 at 12, 70-2 at 3-4. 7 Construing the evidence in the light most favorable to Plaintiff, the Court concludes 8 | that there is a triable issue as to whether ABOR’s proffered reasons for the adverse actions 9| are unworthy of credence. Because Plaintiff has presented sufficient evidence of pretext, 10 | the Court will deny ABOR’s motion with respect to the religious discrimination claim. 11 B. Retaliation Claim. 12 Plaintiff's retaliation claim survives summary judgment for the same reason. 13 | ABOR’s proffered reasons for the adverse employment actions remain the same (Doc. 74 14| at 18), and, as described above, Plaintiff has presented evidence showing that the reasons 15 | are unworthy of credence. The Court will deny ABOR’s motion for summary judgment on the retaliation claim. 17 IT IS ORDERED: 18 1. Plaintiff's motion for summary judgment (Doc. 70) is denied. 19 2. Defendant ABOR’s motion for summary judgment (Doc. 74) is denied. 20 3. The Court will schedule a telephone conference with the parties to set trial 21 and final pretrial conference dates. 22 Dated this 8th day of July, 2026.

24 » pend 6 Cres plitl 25 David G. Campbell 26 Senior United States District Judge 27 28