FILED

NOT FOR PUBLICATION JUL 30 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANITA ARANDA and GINA BROCK, No. 11-16894

Plaintiffs - Appellants, D.C. No. 3:09-cv-00660-RCJ-

RAM

v.

RENOWN SOUTH MEADOWS MEMORANDUM*

MEDICAL CENTER,

Defendant - Appellee.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, Chief District Judge, Presiding

Argued and Submitted April 18, 2013 San Francisco, California

Before: GRABER and CHRISTEN, Circuit Judges, and TUNHEIM,** District Judge.

Plaintiffs, Anita Aranda and Gina Brock, appeal from the district court’s

order granting summary judgment on their claims of national origin discrimination

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation. and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e

et seq., against Renown South Meadows Medical Center (Renown). We have

jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Leong v. Potter,

347 F.3d 1117, 1123 (9th Cir. 2003), and affirm.

Even if plaintiffs established a prima facie case of employment

discrimination under the burden-shifting framework in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802–03 (1973), they failed to show that Renown’s

proffered “legitimate, nondiscriminatory reason” for terminating them—sleeping

on duty—was a “pretext for unlawful discrimination.” Aragon v. Republic Silver

State Disposal, Inc., 292 F.3d 654, 658 (9th Cir. 2002). Plaintiffs aver that their

direct supervisor expressed anti-Filipino animus. But the record shows that the

director of human resources (who expressed no such bias) left the supervisor with

virtually no choice but to terminate plaintiffs because of several reports of them

sleeping on duty in violation of Renown’s policy.

Plaintiffs cannot establish a prima facie case of retaliation based on Brock’s

request to speak to Renown’s hospital administrator after plaintiffs’ supervisor

accused them of sleeping on duty. See Raad v. Fairbanks N. Star Borough Sch.

Dist., 323 F.3d 1185, 1196–97 (9th Cir. 2003) (to make out prima facie case of

retaliation, plaintiffs must show that: (1) they engaged in protected activity; (2)

2 defendant subjected them to adverse employment action; and (3) causal link exists

between protected activity and adverse action). Brock’s request was not a

“protected activity” because she did not oppose an unlawful practice. See id. at

1197 (protected activities include filing charge or complaint, providing testimony

regarding employer’s alleged unlawful practices, and engaging in activity intended

to oppose employer’s discriminatory practices). Further, Aranda presents no

evidence of a relationship between Brock’s request to speak to the hospital

administrator and Aranda’s complaint to the hospital administrator six months

earlier.

Summary judgment was properly granted.

AFFIRMED.

3

FILED

Aranda v. Renown Medical Center, 11-16894 JUL 30 2013

MOLLY C. DWYER, CLERK

TUNHEIM, District Judge, concurring in part and dissenting in part. U.S. COURT OF APPEALS

I join the the majority’s conclusion that the district court properly granted

summary judgment on plaintiffs’ retaliation claim, but I respectfully dissent from

the conclusion that plaintiffs’ national origin discrimination claim fails.

Although the director of human resources instructed the supervisor to

terminate plaintiffs, the immediate impetus for the director’s instruction was an

email from the supervisor describing plaintiffs’ conduct and noting that it

amounted to “a termination offence.” And about one hour prior to sending the

email that led to plaintiffs’ termination, the supervisor had allegedly said that he

“hate[d] F’ing . . . Filipinos” and was “sick and tired of Filipinos.”1

1 As Renown notes, plaintiffs have relied only on the McDonnell Douglas framework throughout this action to establish their claim for national origin discrimination. Given the overtly discriminatory comments allegedly made by the supervisor, plaintiffs may have been able to establish a prima facie case without relying on McDonnell Douglas had they attempted to do so. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (“[I]f a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case. The McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.” (citation and internal quotation marks omitted)); E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009) (“A plaintiff may establish a prima facie case either by meeting the four-part test laid out in [McDonnell Douglas] or by providing direct evidence suggesting that the employment decision was based on an impermissible criterion.”). The supervisor’s statements may have been sufficient for plaintiffs to survive summary judgment regardless of whether plaintiffs can establish the McDonnell Douglas prima facie test and despite Renown’s proffered non-discriminatory justification for firing plaintiffs. See Boeing Co., 577 F.3d at 1049 (“When the evidence is In my view, a reasonable factfinder could find that the supervisor

“influenced or participated in the decisionmaking process” by sending the email,

and viewing the facts in the light most favorable to plaintiffs, a reasonable

factfinder could find that the supervisor’s “animus affected the employment

decision.” Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1039-40 (9th

Cir. 2005); see also Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (“[I]f

a subordinate . . . sets in motion a proceeding by an independent decisionmaker

that leads to an adverse employment action, the subordinate’s bias is imputed to the

employer if the plaintiff can prove that . . . the biased subordinate influenced or

was involved in the decision or decisionmaking process.”). Therefore, I believe

there is a sufficient connection between the discriminatory remarks and plaintiffs’

termination for a reasonable factfinder to determine that unlawful discrimination

occurred. See 42 U.S.C. § 2000e-2(m) (“[A]n unlawful employment practice is

established when the complaining party demonstrates that . . . national origin was a

motivating factor for any employment practice, even though other factors also

motivated the practice.”).

Accordingly, I would reverse and remand on plaintiffs’ national origin

discrimination claim.

direct, we require very little evidence to survive summary judgment.” (alteration and internal quotation marks omitted)). 2