NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 21 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL G. GARCIA, individually; No. 16-35005 SHERMAN MAH, individually; RICHARD

J. WOLFINGTON, individually, D.C. No. 2:14-cv-00030-RAJ

Plaintiffs-Appellants,

MEMORANDUM*

v.

CITY OF EVERETT, a municipal corporation; DAVID M. FUDGE, individually and his marital community; KATHERINE A. ATWOOD, individually and her martial community,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Argued and Submitted February 6, 2018 Seattle, Washington

Before: M. SMITH and MURGUIA, Circuit Judges, and ROBRENO,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Plaintiffs-Appellants Manuel Garcia, Sherman Mah, and Richard

Wolfington (collectively “Appellants”) served as police officers with the City of

Everett’s Police Department. Garcia maintains Defendants-Appellees racially

discriminated against him by demoting him from lieutenant at the end of his

probationary period. Mah and Wolfington assert Defendants-Appellees racially

discriminated against them in deciding not to promote them. On appeal, Appellants

challenge the district court’s grant of Defendants-Appellees’ motion for summary

judgment on Appellants’ discrimination claims under 42 U.S.C. §§ 1981, 1983,

and the Washington Law Against Discrimination (“WLAD”). Additionally,

Wolfington appeals the district court’s grant of summary judgment to Defendants-

Appellees on his retaliation claim. Appellants also appeal the district court’s

decision to exclude a proposed expert’s testimony. We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.

1. We review the district court’s grant of summary judgment de novo.

McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004). Where, as

here, a plaintiff-appellant has established a prima facie case of discrimination and a

defendant-appellee has produced evidence of a legitimate non-discriminatory

reason for the adverse action, the plaintiff “must produce some evidence

suggesting that [an employer’s] failure to promote him was due in part or whole to

discriminatory intent” to defeat summary judgment. Id. at 1123. Appellees offered legitimate, non-discriminatory reasons for demoting Garcia from

lieutenant at the end of his probationary period because they maintain he did not

meet the Everett Police Department’s expectations for lieutenants based on issues

reflected in Garcia’s probationary reviews. See id. Thus, to survive summary

judgment, Garcia must produce some evidence of discriminatory motive. See

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006);

McGinest, 360 F.3d at 1122. Garcia fails to produce such evidence.

Garcia argues his supervisor, Captain David Fudge, manufactured three

negative probationary evaluations. Although evidence that an employer falsified a

performance evaluation may be a common method of demonstrating pretext, the

record does not support Garcia’s contention that Fudge falsified Garcia’s

probationary evaluations because, reviewed as a whole, the record does not raise

material doubts as to the performance evaluations’ factual veracity. See Stone v.

Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000) (explaining that evidence

that an employer falsified an evaluation is a common method to demonstrate

pretext); see also George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir. 2005).

Garcia also contends the Everett Police Department refused to allow for an

independent evaluation of Garcia’s performance or to extend his probationary

3 period, which allegedly previously had been done for a white probationary

lieutenant. However, Garcia does not provide sufficient details for the court to

determine whether Garcia and the unidentified white probationary lieutenant were

actually similarly situated. See Vasquez v. County of Los Angeles, 349 F.3d 634,

641–42 (9th Cir. 2003) (holding that although showing that similarly situated

employees’ outside of plaintiff’s protected class were treated more favorably than

plaintiff is probative of pretext, plaintiff failed to provide sufficient evidence to

make that showing); see also Ward v. Procter & Gamble Paper Prods. Co., 111

F.3d 558, 560 (9th Cir. 1997).

Finally, Garcia asserts that Fudge had a history of racist attitudes and

behaviors that could support a jury finding that Fudge acted with conscious or

unconscious bias. In support of his argument, Garcia cites a cursory reference to a

lawsuit from 1991 where Fudge and the City of Everett were sued for civil rights

violations, which included allegations of racial discrimination, and in which all

parties were found equally at fault. This portion of the record does not state that the

lawsuit resulted in a finding that Fudge took discriminatory actions against the

plaintiff in that case. This incomplete citation to the record, standing alone, hardly

constitutes a known history of racist attitudes and behavior. Accordingly, we

affirm the district court’s decision to grant Defendants-Appellees’ motion for

summary judgment on Garcia’s discrimination claim.

4 3. Mah also established a prima facie case of discrimination.

Defendants-Appellees offered legitimate, non-discriminatory reasons for choosing

not to promote Mah to sergeant, asserting that they determined Mah was not

qualified for the job based on his poor interviews and lack of leadership skills.

Thus, to survive summary judgment, Mah must produce some evidence of

discriminatory motive. See Cornwell, 439 F.3d at 1028; McGinest, 360 F.3d at

1122. Mah fails to produce such evidence.

Mah attacks the factual bases supporting Defendants-Appellees reasons for

not promoting him, asserts that he was treated differently than non-minorities, and

claims he was treated differently in the interview process. However, on this record,

Mah has not presented enough evidence to demonstrate that the Everett Police

Department’s assessment of his performance during both interviews was pretext

for discrimination. See Chuang, 225 F.3d at 1124; see also Peters v. Shamrock

Foods Co., 262 F. App’x 30, 32–34 (9th Cir. 2007) (holding that plaintiff failed to

carry her burden of proving employer’s legitimate, non-discriminatory reasons for

not promoting her were pretextual where employer provided evidence that plaintiff

needed to improve her interpersonal and leadership skills); Roberson v. Pac.

Lutheran Univ., No. 3:13-cv-05323-RJB, 2013 WL 5966133, at *3–4 (W.D. Wash.

Nov. 8, 2013) (finding that plaintiff failed to produce evidence of pretext to

demonstrate that employer’s legitimate, non-discriminatory reasons for not hiring

5 plaintiff—that she did not possess the communication skills necessary for the

position, that she was not the best candidate, and she did not possess the

experience the employer sought in a candidate—were covering discriminatory

motive), aff’d 616 F. App’x 276 (9th Cir. 2015). Additionally, contrary to Mah’s

assertion, the Everett Police Department did not violate the “rule of three” because

the Department applied the rule in accordance with Hellum v. Johnson, 317 P.2d

1073, 1075 (Wash. 1957) (holding that when two vacancies for police captain

occurred, the police department could choose to appoint a candidate who ranked in

the top three of the remaining candidates at the time of appointment). Accordingly,

we affirm the district court’s grant of Defendants-Appellees’ summary judgment

motion on Mah’s discrimination claim.

4. Wolfington’s discrimination claim fails because he has not

demonstrated that Chief Katherine Atwood knew he is Native American, and

Defendants-Appellees could not have discriminated against Wolfington based on

race unless Atwood, as the decision-maker, was aware of Wolfington’s race. See

Robinson v. Adams, 847 F.2d 1315, 1316–17 (9th Cir. 1987). Wolfington does not

point to anything in the record to show that Atwood relied exclusively on Fudge

when deciding whether to promote Wolfington. As a result, Wolfington’s

discrimination claim fails. See id. at 1316.

5. Wolfington claims he engaged in two separate protected activities by

6 “reporting to his supervisor that Fudge appeared to be harassing a female officer

including acts that met the standards of domestic violence” and challenging

Fudge’s purported mistreatment of Garcia. Wolfington also claims he suffered the

following adverse employment actions: (1) he was skipped over for promotion in

violation of the “rule of three”; (2) he was not given any administrative sergeant

position; (3) he was not given the active lieutenant position; (4) he suffered

demeaning conduct at Fudge’s hands because Fudge targeted him for failure and

orchestrated a poor performance evaluation; and (5) his performance evaluation

contained false and inaccurate information.

To establish a prima facie case of retaliation, Wolfington must show that

“(1) [he] engaged in a protected activity, (2) [he] suffered an adverse employment

action, and (3) there was a causal link between [his] activity and the employment

decision.” See Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065–66 (9th Cir.

2003) (citation omitted); Graves v. Dep’t of Game, 887 P.2d 424, 427 (Wash. Ct.

App. 1994). Temporal proximity between the protected activity and the adverse

employment action can in some cases, by itself, constitute sufficient circumstantial

evidence of retaliation. Bell v. Clackamas County, 341 F.3d 858, 865–66 (9th Cir.

2003). Because Wolfington does not demonstrate that the elapsed time between his

alleged protected activities and the alleged adverse actions are very close in time,

his retaliation claim fails. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273

7 (2001); Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197–98

(9th Cir. 2003). Courts have held “very close” temporal proximity to mean that 1.5

months is sufficient whereas three and four months is too long. See Breeden, 532

U.S. at 273–74. Moreover, nowhere in his briefing does Wolfington argue with

specificity which alleged protected activities and which alleged adverse actions

were sufficiently “very close” in time. This failure prevents the Court from

assessing whether Wolfington presented enough evidence to rely on temporal

proximity to establish his retaliation claim. See James River Ins. Co. v. Hebert

Schenk, P.C., 523 F.3d 915, 920 n.1 (9th Cir. 2008) (finding that “some

indications” of an argument are insufficient to preserve an argument on appeal and

the argument is therefore waived) (citing Greenwood v. FAA, 28 F.3d 971, 977

(9th Cir. 1994) (“We review only issues which are argued specifically and

distinctly in a party’s opening brief.”)). Therefore, Wolfington’s retaliation claim

fails.

6. Finally, the district court did not abuse its discretion in striking

Michael Letter’s proposed expert testimony because the district court: (1) applied

the correct legal standard in performing its gatekeeper function regarding the

admission of evidence; and (2) concluded that Letter’s opinions were unreliable

and unhelpful because Letter failed to explain the basis for his opinions. See

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999) (“[T]he law grants a

8 district court the same broad latitude when it decides how to determine reliability

as it enjoys in respect to its ultimate reliability determination.”) (emphasis in

original); Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 860 (9th Cir.

2014) (explaining that a proposed expert’s testimony must “have a reliable basis in

the knowledge and experience of his discipline,” which “requires district courts,

acting in a gatekeeping role, to assess whether the reasoning or methodology

underlying the testimony is valid and whether that reasoning or methodology

properly can be applied to the facts in issue”) (citations and internal quotation

marks omitted).

AFFIRMED.

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