NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 17 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIMBERLY FRANETT-FERGUS, an No. 16-35613 individual, D.C. No. 2:15-cv-00242-TOR Plaintiff - Appellant,

v. MEMORANDUM*

OMAK SCHOOL DISTRICT 19, a public school; K12 MANAGEMENT, INC., a foreign corporation; K12 VIRTUAL SCHOOLS, LLC, a foreign corporation; K12, INC., a foreign corporation; K12 WASHINGTON, LLC, a foreign corporation,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding

Argued and Submitted July 11, 2018 Seattle, Washington

Before: FERNANDEZ, CLIFTON, and NGUYEN, Circuit Judges.

Kimberly Franett-Fergus appeals the district court’s order granting summary

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. judgment in favor of Omak School District 19 and K-121 on her religion, national

origin, and race discrimination claims under Title VII and the Washington Law

Against Discrimination (“WLAD”). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

We review a district court’s summary judgment order de novo, considering

the evidence in the light most favorable to the non-moving party. Fresno Motors,

LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014).

Discrimination claims under both Title VII and the WLAD are analyzed under the

same three-part, burden-shifting test. See McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802–05 (1973); Kastanis v. Educ. Emps. Credit Union, 122 Wash. 2d

483, 490 (1993). The plaintiff must first establish a prima facie case of

discrimination. EEOC v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009). If she

does so, then the defendant must offer a legitimate, nondiscriminatory reason for

its actions. Id. Finally, the burden shifts back to the plaintiff to show that the

defendant’s proffered reason is pretext. Id.

Religion Discrimination

Fergus2 alleges that Omak and K-12 hired Fareeha Azeem because she is

1 “K-12” refers collectively to K12 Management, Inc.; K12 Virtual Schools, LLC; K12, Inc.; and K12 Washington, LLC. 2 We follow the plaintiff’s briefing in referring to her as Fergus rather than Franett-Fergus.

2 Muslim and Fergus is not, even though no one asked them about their religious

affiliation during the hiring process.

The district court correctly concluded that Fergus failed at the first step of

the McDonnell Douglas test to establish a prima facie case of discrimination based

on religion. Fergus must show, among other factors, that “similarly situated

individuals outside h[er] protected class were treated more favorably, or other

circumstances surrounding the adverse employment action give rise to an inference

of discrimination.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir.

2004). While the burden at this first stage is “not onerous,” Lyons v. England, 307

F.3d 1092, 1112 (9th Cir. 2002), Fergus must still produce some evidence to meet

her burden, see id. at 1113. Fergus failed to do so, relying exclusively on Azeem’s

appearance, including the wearing of a headscarf, to speculate that Azeem must be

Muslim. Fergus fails to recognize that people may wear similar headscarves for a

variety of non-religious reasons, including cultural practices, modesty, or simply

fashion.3 In short, evidence of Azeem wearing a headscarf alone raises no

legitimate inference as to her personal religious beliefs. Fergus leans heavily on

Conley’s declaration, but it adds nothing to her case because he engaged in the

same speculation based on Azeem’s appearance. Significantly, Fergus presents no

3 The wearing of headscarves for religious reasons is also not limited to the Islamic faith.

3 evidence that Jayme Evans, the principal who hired Azeem instead of Fergus,

shared the same assumption that Azeem is Muslim.

Moreover, even if Fergus had established a prima facie case, as discussed

below, Omak and K-12 stated legitimate, non-discriminatory reasons for hiring

Azeem that Fergus failed to show were pretext.

National Origin and Race Discrimination

Fergus relies on Azeem’s appearance and name as evidence that Omak and

K-12 discriminated against her based on national origin and race. A national

origin claim arises “when discriminatory practices are based on the place in which

one’s ancestors lived.” Dawavendewa v. Salt River Project Agric. Improvement

and Power Dist., 154 F.3d 1117, 1119 (9th Cir. 1998).

The district court did not err in granting summary judgment in favor of

Omak and K-12 on Fergus’s national origin and race discrimination claims. Even

assuming that Fergus and Azeem do not share the same national origin and race,

Fergus fails to show that Omak’s and K-12’s reasons for hiring Azeem were

pretext.4 At the second step of the McDonnell Douglas test, Omak and K-12

offered legitimate, non-discriminatory reasons for hiring Azeem: (1) Azeem’s

engineering degree permitted her to teach multiple subjects, and (2) Evans was

4 We need not decide whether the district court correctly found that Fergus failed at the first step of the McDonnell Douglas test to establish a prima facie case of national origin discrimination.

4 concerned about Fergus’s ability to accept authority and collaborate with others,

Even prior to the interviews, Evans expressed interest in Azeem’s

engineering background. Because funding for the position to which both women

had applied was only temporary, Evans viewed Azeem as a better hire because her

engineering degree would allow her to teach subjects other than math in the future.

Indeed, Azeem’s ability to teach multiple subjects came in handy when funding

was not extended, and Azeem was able to continue working at Omak by teaching

physics instead.

Prior to Evans’s decision, she also specifically and contemporaneously noted

her concerns about Fergus’s ability to accept authority and collaborate with others:

once during her interview, and a second time after speaking with a reference.

Between two qualified candidates, such distinctions are legitimate bases on which

to hire one candidate over another. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 259 (1981) (“[T]he employer has discretion to choose among equally

qualified candidates, provided the decision is not based upon unlawful criteria.”).

Because Evans articulated legitimate, non-discriminatory reasons for

preferring Azeem, the burden shifts to Fergus to show the proffered reasons were

pretext. At this step, Fergus must point to evidence “both that the [proffered]

reason[s] [were] false, and that discrimination was the real reason.” St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). Fergus relies on evidence that the

5 ability to teach multiple subjects was not listed on the job posting in violation of

the collective bargaining agreement, and Evans failed to follow Conley’s past

hiring experiences—such as numerically scoring candidates and adhering to the

majority vote of the hiring team. However, it is undisputed that Evans was the sole

decision-maker, and the fact that her practices differed from Conley’s experience

or that she did not strictly comply with the collective bargaining agreement do not

suggest that her proffered reasons were false, let alone that the true reason was race

or national origin.

Fergus points to Evans’s interest in increasing “diversity” among Omak’s

teachers. However, as the district court correctly noted, the word “diversity” is not

limited to race or national origin. Indeed, Evans explained that, to her, the term

includes consideration of “socioeconomic backgrounds, ability to teach multiple

subjects.” There is no evidence from which a reasonable trier of fact could find

that Evans, or anyone else, meant race or national origin in referring to “diversity.”

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere

existence of a scintilla of evidence in support of the plaintiff’s position will be

insufficient [to survive summary judgment].”).

AFFIRMED.

6

FILED

No. 16-35613, Franett-Fergus v. Omak School District 19

AUG 17 2018

CLIFTON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent. This case comes to us on summary judgment, and I

cannot conclude that a reasonable jury could not reach a verdict in favor of

Plaintiff, or that such a verdict would have to be set aside as unreasonable. See,

e.g., Cornwell v. Electra Cent. Credit Union, 439 F.3d 1019, 1027 (9th Cir. 2006)

(“If a reasonable jury viewing the summary judgment record could find by a

preponderance of the evidence that [the plaintiff] is entitled to a verdict in his

favor, then summary judgment was inappropriate.”). As it happens, the evidence

submitted by Plaintiff in support of her discrimination claims does not seem very

persuasive to me. Were I the factfinder, as a member of a jury or as the judge in a

bench trial, I would probably not be persuaded by Plaintiff’s evidence. We are not

the finders of fact, however. I would vacate the summary judgment and remand

the case to the district court for further proceedings.