John Gallagher v. San Diego Unified Port Dist.

FILED

NOT FOR PUBLICATION

SEP 07 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN GALLAGHER, No. 14-56517

Plaintiff - Appellant, D.C. No. 3:08-cv-00886-AJB-WVG v.

SAN DIEGO UNIFIED PORT MEMORANDUM*

DISTRICT; DOES, 1 through 20,

Defendants - Appellees.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Submitted August 31, 2016** Pasadena, California

Before: SILVERMAN, FISHER, and WATFORD, Circuit Judges.

John Gallagher appeals the district court’s summary judgment in favor of the

San Diego Unified Port District. We have jurisdiction pursuant to 28 U.S.C. §

1291 and affirm.

* 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). The district court correctly applied the but-for causation test to Gallagher’s

Americans With Disabilities Act retaliation…

dissenting:

“To establish a prima facie case of retaliation under the ADA, an employee must show that: (1) he or she engaged in a protected activity; (2) suffered an adverse ... action; and (3) there was a causal link between the two.” Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004). The “standard for the ‘causal link’ is but-for causation.” T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 473 (9th Cir. 2015). “This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the [defendant].” Univ. of Texas Sw. Med. Ctr. v. Nassar, — U.S.-, 133 S.Ct. 2517, 2533 , 186 L.Ed.2d 503 (2013).

In the majority’s view, Gallagher has not presented a triable issue on the third element of a prima facie case — a but-for causal link between his protected activity and the Port District’s refusal to honor his “no expiration date” anchoring permit. I respectfully disagree with this conclusion because it improperly applies the law of the case doctrine.

“Under the law of the case doctrine, a court will generally refuse to reconsider an issue that has already been decided by the same court or…

MEMORANDUM **

John Gallagher appeals the district court’s summary judgment in favor of the San Diego Unified Port District. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

The district court correctly applied the but-for causation test to Gallagher’s Americans With Disabilities Act retaliation claim. See T.B, ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 473 (9th Cir. 2015). Likewise, the district court correctly held that Univ. of Tex. Sw. Med. Ctr. v. Nassar, — U.S. -, 133 S.Ct. 2517 , 186 L.Ed.2d 503 (2013), was intervening controlling authority that allowed it to reconsider causation on remand. Compare T.B., 806 F.3d at 473 , with Head v. Glacier Nw., Inc., 413 F.3d 1053, 1064-65 (9th Cir. 2005).

The district court also correctly ruled that Gallagher’s evidence does not show that retaliation was the cause of the non-renewal of his anchorage permit, as the but-for test' requires. In the previous appeal, we held only that retaliation was shown to be a possible cause because the individual who denied Gallagher’s appeal of *787 the permit denial knew about Gallagher’s previous lawsuit. Applying the but-for test, undisputed evidence establishes…