NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 22 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEJON D. WHITE, No. 17-17143

Plaintiff-Appellant, D.C. No. 5:15-cv-03521-EJD

v.

MEMORANDUM*

STATE OF CALIFORNIA, (California Department of Corrections and Rehabilitation); et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding

Argued and Submitted January 18, 2019 San Francisco, California

Before: WALLACE, CLIFTON, and FRIEDLAND, Circuit Judges.

Dejon White appeals from the district court’s summary judgment in his

employment discrimination action under 42 U.S.C. § 1981 and California state law

against various individual correctional officers (collectively, “Defendants”).

White, who is an American of African descent, alleges that he suffered discipline

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. amounting to an adverse employment action during his employment as a

correctional officer with the California Department of Corrections and

Rehabilitation, and that the discipline was motivated by race discrimination and by

retaliation for protected activity. We affirm the district court’s summary judgment

in favor of Defendants.

In evaluating claims of discrimination and retaliation under 42 U.S.C.

§ 1981, we apply the burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Here, even assuming that White

established a prima facie case of discrimination and retaliation, he has failed to

present evidence from which a jury could conclude that the Defendants’ legitimate,

nondiscriminatory reasons were pretextual. Defendants introduced undisputed

evidence that White was ordered to cover Officer Vanessa Polanco’s post, that

White told Sergeant Warren he was ill and was then instructed by Sergeant Warren

to go to the Correctional Treatment Center (“CTC”) to complete a form for a

medical report of injury before leaving, that White objected to the process during

his meeting at CTC, and that White refused to fill out the form and eventually left

work without doing so. Defendants proffered a legitimate, nondiscriminatory

reason for White’s discipline: that he disobeyed superior officer Sergeant Warren’s

direct order. The burden therefore shifted back to White to demonstrate pretext.

White failed to present “specific and substantial” evidence of pretext. See

2 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002). For

example, White argues that another employee, Officer Polanco, was allowed to

leave for medical reasons but not required to fill out the form or subjected to any

discipline. Being required to fill out the form did not itself constitute an adverse

employment action. Nor was White disciplined for failing to fill out the form.

Rather, he was disciplined for disobeying the order to fill out the form. As a result,

he needed to present evidence that another employee outside of his protected class

also disobeyed a direct order of comparable seriousness and was not disciplined for

his or her actions. White has not presented such evidence, or anything else that

supports his argument that the non-discriminatory reason for which he was

disciplined was actually pretextual. White’s argument that the difference in how

Polanco was treated shows that Warren’s order was itself unjustified ignores the

fact that Polanco had already been pre-approved for informal time off, which she

was permitted to use without filling out any form. We agree with the district court

that White’s other evidence that he contends shows pretext, including the alleged

delay in investigation and timing of the adverse action, individually or collectively

do not rise to the level of “specific and substantial” evidence. Because of his

failure to present evidence of pretext, White’s claims of both discrimination and

retaliation under 42 U.S.C. § 1981 fail.

The district court’s summary judgment in favor of Defendants is

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AFFIRMED.

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