NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 6 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARGARITA VEJO, No. 16-35817

Plaintiff-Appellee, D.C. No. 3:14-cv-01656-AA

v.

MEMORANDUM*

PORTLAND PUBLIC SCHOOLS, a public entity; et al.,

Defendants-Appellants,

and

LEWIS & CLARK COLLEGE, an Oregon public benefit corporation,

Defendant.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Argued and Submitted May 15, 2018 Portland, Oregon

Before: McKEOWN and PAEZ, Circuit Judges, and BASHANT,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Cynthia A. Bashant, United States District Judge for the Southern District of California, sitting by designation. Portland Public Schools, Petra Callin, and Roberta Cooper (collectively,

“Defendants”) appeal the district court’s order denying summary judgment on the

basis of qualified immunity in an action brought by Margarita Vejo. Vejo asserted

claims pursuant to 42 U.S.C. § 1983 alleging that Defendants discriminated against

her on the basis of her national origin (Russian) and religion (Orthodox Christian)

in violation of the Fourteenth Amendment when Defendants terminated Vejo’s

counseling internship at Madison High School in Portland, Oregon.1 Because the

parties are familiar with the facts, we do not repeat them here. We have

jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.

We review de novo the district court’s order denying a motion for summary

judgment on the basis of qualified immunity. Lindsey v. Shalmy, 29 F.3d 1382,

1384 (9th Cir. 1994).

The plaintiff in a § 1983 claim alleging an equal protection violation must

prove that the defendant acted in a discriminatory manner and that the

discrimination was intentional. See Flores v. Morgan Hill Unified Sch. Dist., 324

F.3d 1130, 1135 (9th Cir. 2003). Discriminatory intent may be proved by direct or

indirect evidence. Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,

266 (1977). “‘Intentional discrimination means that a defendant acted at least in

1 Although Vejo brought other claims under 42 U.S.C. § 1983 and state law, none of those claims are at issue in this interlocutory appeal.

2 part because of a plaintiff’s protected status.’” Serrano v. Francis, 345 F.3d 1071,

1082 (9th Cir. 2003) (emphasis in original) (quoting Maynard v. City of San Jose,

37 F.3d 1396, 1404 (9th Cir. 1994)). “Beyond this requirement of showing

intentional discrimination, however, there is no specific test that an equal

protection plaintiff is required to meet, and in order to survive a motion for

summary judgment by the defendant, a plaintiff must only produce evidence

sufficient to establish a genuine issue of fact as to the defendant’s motivations.”

Fed. Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 471 (9th Cir. 1991) (footnote

omitted).

Because the district court granted summary judgment in favor of Defendants

on Vejo’s First Amendment claims and only Vejo’s equal protection rights are at

issue in this appeal, Vejo’s reliance on First Amendment cases like Waters v.

Churchill, 511 U.S. 661 (1994), and Oyama v. University of Hawaii, 813 F.3d 850

(9th Cir. 2015), is misplaced.

I. Petra Callin

The district court erred in denying Defendants’ motion for summary

judgment as to Callin. Simply put, Vejo presented no evidence suggesting that

Callin terminated Vejo because of Vejo’s national origin or religion. Viewing the

evidence in the light most favorable to Vejo, see Tolan v. Cotton, 134 S. Ct. 1861,

1865 (2014), the facts at most establish that Callin’s decision was based on reports

3 by other Madison employees of Vejo’s alleged statements. There is no evidence

that any of the reports that Callin received depended upon, or even mentioned,

Vejo’s national origin or religion. Thus, even if Vejo could prove that the reports

were factually inaccurate, that inaccuracy would raise no inference that Callin

intentionally discriminated against Vejo on account of a Fourteenth Amendment-

protected ground. Because Vejo has failed to show an equal protection violation,

Callin is entitled to qualified immunity. See Pearson v. Callahan, 555 U.S. 223,

232 (2009). We therefore reverse the district court’s order denying summary

judgment in favor of Callin.

II. Roberta Cooper

The district court also erred in denying Defendants’ motion for summary

judgment on the basis of qualified immunity as to Cooper. Vejo failed to establish

a causal link between the alleged discrimination and a protected ground—the latter

of which Vejo herself raised at Madison High School. See City of Cuyahoga Falls

v. Buckeye Cmty. Hope Found., 538 U.S. 188, 196 (2003) (concluding that

plaintiffs failed to establish discriminatory intent because they “put forth no

evidence that the ‘private motives [that] triggered’ the referendum drive ‘can fairly

be attributed to the State’” (alteration in original) (quoting Blum v. Yaretsky, 457

U.S. 991, 1004 (1982))). That is particularly true considering that several Madison

employees expressed significant doubts about Vejo’s ability to adequately counsel

4 Madison students without supervision, which Vejo’s job indisputably required.

The only direct evidence Vejo presented of intentional discrimination was

Cooper’s question about Russian judgment in preventing the participation of gay

athletes in the 2014 Winter Olympics. In context, this “stray remark,” which was

followed by a clarification, was insufficient to establish intentional discrimination.

See, e.g., Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438–39 (9th Cir. 1990)

(citing cases).

Given these facts, Vejo’s disputed allegation that Cooper’s remark about

being “judgmental” also followed Vejo’s self-identification as a Christian was

insufficient to carry Vejo to trial. See Henderson, 940 F.2d at 474 (“To hold

otherwise would be to make summary judgment unavailable in all cases where the

plaintiff has alleged direct evidence of discriminatory intent.”). Accordingly, we

conclude that Cooper is entitled to qualified immunity with respect to Vejo’s equal

protection claim and reverse the district court’s order denying summary judgment

in favor of Cooper.

REVERSED and REMANDED.

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