NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 2 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS AUGUSTINE VASQUEZ, No. 18-35255

Plaintiff-Appellant, D.C. No. 4:16-cv-00184-DCN

v.

MEMORANDUM*

CITY OF IDAHO FALLS,

Defendant-Appellee.

Appeal from the United States District Court for the District of Idaho David C. Nye, District Judge, Presiding

Argued and Submitted May 15, 2019 Seattle, Washington

Before: W. FLETCHER and BENNETT, Circuit Judges, and SILVER,** District Judge.

Luis Agustin Vasquez appeals the district court’s grant of summary

judgment on his claims of race discrimination and retaliation under Title VII of the

Civil Rights Act of 1964. We have jurisdiction under 28 U.S.C. § 1291, and we

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Roslyn O. Silver, United States District Judge for the District of Arizona, sitting by designation. reverse and remand for a trial on Vasquez’s Title VII claims of race discrimination

and retaliation. As the facts are familiar to the parties, we do not recite them here

except as necessary.

“We review the district court’s grant of summary judgment de novo,

construing the facts in the light most favorable to the nonmoving party and

drawing all reasonable inferences in that party’s favor.” Earl v. Nielsen Media

Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011).

I. Discrimination

The district court erred in granting summary judgment in favor of the City of

Idaho Falls (“the City”) on Vasquez’s discrimination claim. Vasquez, who is

Hispanic and Mexican-American, alleges the City terminated him because of his

race. We examine Vasquez’s discrimination claim under the McDonnell Douglas

burden-shifting scheme. See Reynaga v. Roseburg Forest Prods., 847 F.3d 678,

691 (9th Cir. 2017). The parties do not dispute that Vasquez satisfied his burden of

establishing a prima facie case of race discrimination. The City’s proffered non-

discriminatory reasons for Vasquez’s termination are that Vasquez was accused of

sexual harassment by his coworkers shortly before his termination and that

Vasquez fired an employee named Arturo Alvarez without authority.

In response, Vasquez presents sufficient evidence to establish a genuine

dispute of material fact as to whether the City’s claimed reasons for the termination

2 18-35255 were pretext for unlawful discrimination. The district court correctly noted there is

no direct evidence of discriminatory intent because Vasquez has not established the

required nexus between coworker Jeff Baird’s discriminatory comments and

Vasquez’s termination. See Vasquez v. County of Los Angeles, 349 F.3d 634, 640

(9th Cir. 2003). However, the district court failed to properly consider Vasquez’s

circumstantial evidence of pretext. Vasquez presents evidence that throughout his

employment at the City, he was subjected to racial harassment by Baird and that

the City failed to punish Baird despite receiving reports from multiple people about

his racist conduct. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1123 (9th

Cir. 2004) (explaining that an employer’s “permissive response to harassing

actions undertaken by coworkers and supervisors” is circumstantial evidence of

pretext). By contrast, after the City received similarly severe complaints of sexual

harassment against Vasquez, it treated him less favorably than Baird, a white man,

by immediately disciplining Vasquez and terminating him two weeks later. See

Reynaga, 847 F.3d at 691–92. Vasquez also offers evidence that one of the City’s

proffered reasons—his unauthorized termination of Alvarez—is inconsistent with

the City’s own personnel records that state Alvarez resigned because he found a

new job, raising a triable issue as to whether its reason is “unworthy of credence.”

See Noyes v. Kelly Servs., 488 F.3d 1163, 1171–72 (9th Cir. 2007). Further,

evidence in the record indicates the City disciplined and terminated Vasquez in an

3 18-35255 irregular manner when it immediately disciplined Vasquez while refusing to

explain the reason, failed to follow its progressive disciplinary process, and denied

Vasquez access to the personal belongings he kept at work.

We therefore reverse the district court’s grant of summary judgment to the

City on Vasquez’s Title VII discrimination claim.

II. Retaliation

We conclude that Vasquez properly pled a Title VII retaliation claim in his

operative complaint. Vasquez’s allegation that the “City fired Vasquez because of

his race, and in retaliation for his complaints about and protest of . . . the racial

harassment and discrimination to which he was subjected, in violation of Title VII,”

gave sufficient notice to the City of his Title VII retaliation claim. See Pickern v.

Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006).

On the merits of the retaliation claim, Vasquez established a prima facie case

by showing he undertook a protected activity when he complained to his

supervisors about Baird’s racial harassment, and he was terminated by the City

approximately two months after his most recent complaint in September 2015. See

Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). As in the disparate

treatment context, the burden shifts back to the City to offer non-retaliatory reasons

for the termination. See Reynaga, 847 F.3d at 693. Those proffered reasons are

that Vasquez was accused of sexual harassment and fired Alvarez without

4 18-35255 authorization.

The district court erred in concluding that Vasquez failed to establish a

genuine dispute of material fact as to whether those reasons were pretext for

retaliation. Vasquez presents evidence of a temporal proximity of approximately

two months between his most recent complaint to the City and his termination. See

Dawson v. Entek Int’l., 630 F.3d 928, 937 (9th Cir. 2011). In addition, Vasquez’s

evidence of the City’s treatment of him during his employment, as well as

evidence of the irregular manner of his discipline and termination, raises a triable

issue as to the City’s retaliatory intent. See Reynaga, 847 F.3d at 694–95. Finally,

conflicting evidence regarding Alvarez’s departure undermines the credibility of

the City’s second proffered reason.

We therefore reverse the district court’s grant of summary judgment to the

City on Vasquez’s Title VII retaliation claim.

III. The City’s Motion to Strike

Finally, we address Vasquez’s challenge to the district court’s decision to

strike portions from the Declaration of Daris Powell as inadmissible summary

judgment evidence. “Evidentiary rulings made in the context of summary

judgment motions are reviewed for abuse of discretion and ‘can only be reversed if

[they were] both manifestly erroneous and prejudicial.’” Bias v. Moynihan, 508

F.3d 1212, 1224 (9th Cir. 2007) (alteration in original, internal quotation marks

5 18-35255 omitted) (quoting Ballen v. City of Redmond, 466 F.3d 736, 745 (9th Cir. 2006)).

The district court did not abuse its discretion when it struck the portions

from the Powell Declaration that concerned Baird’s alleged participation in

Vasquez’s termination decision. Under Federal Rule of Civil Procedure 56(c)(4),

an “affidavit or declaration used to support or oppose a motion must be made on

personal knowledge [and] set out facts that would be admissible in evidence.” The

district court properly struck portions of the Powell Declaration because they were

not based on personal knowledge and did not set forth facts that would be

admissible in evidence. See Wicker v. Or. ex. rel. Bureau of Labor, 543 F.3d 1168,

1178 (9th Cir. 2008). Powell had retired from the City five years prior to

Vasquez’s termination and had worked with different supervisors during his

employment.

Therefore, the district court did not abuse its discretion in striking the

statements as inadmissible.

REVERSED AND REMANDED FOR TRIAL.

6 18-35255