NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 11 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLAUDE BROWN, No. 18-35168

Plaintiff-Appellant, D.C. No. 2:16-cv-01340-TSZ

v.

MEMORANDUM*

KING COUNTY,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Argued and Submitted November 7, 2019 Seattle, Washington

Before: GOULD and NGUYEN, Circuit Judges, and PRESNELL,** District Judge.

Plaintiff-Appellant Claude Brown (“Brown”) appeals the district court’s

grant of summary judgment dismissing his racial discrimination and retaliation

claims under 42 U.S.C. § 1981 and the Washington Law Against Discrimination

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gregory A. Presnell, United States District Judge for the Middle District of Florida, sitting by designation. (“WLAD”). Brown, who is Black, alleges his employer, Defendant-Appellee King

County, discriminated against him on the basis of his race and retaliated against

him for filing discrimination and retaliation complaints with King County’s Office

of Civil Rights.1 We deferred submission of the case pending the Supreme Court’s

decision in Comcast Corp. v. National Association of African American-Owned

Media, 140 S. Ct. 1009 (2020). We now review de novo the district court’s grant

of summary judgment. Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). We

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

discrimination and retaliation claims for further proceedings.

1. Brown claims King County discriminated against him on the basis of

his race by rejecting his applications for the Rail-Supervisor-in-Training (“RSIT”)

position in the 2012 and 2014 promotion cycles and by removing him from the

Acting Technical Trainer (“ATT”) position.2 Because Brown aims to show

discrimination through indirect proof, the McDonnell Douglas burden-shifting

framework applies. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–

04 (1973).

To survive summary judgment, Brown must establish a prima facie case of

1 Because the parties are familiar with the facts and procedural history of the case, we recite only those facts necessary to decide this appeal. 2 Although Brown alleged other instances of discrimination in his complaint, on appeal he limits his discrimination claims to King County’s denial of his RSIT promotions and his removal from the ATT position.

2 racial discrimination by showing: “(1) [he] belongs to a protected class, (2) he was

performing according to his employer’s legitimate expectations, (3) he suffered an

adverse employment action, and (4) similarly situated employees were treated

more favorably, or other circumstances surrounding the adverse employment

action give rise to an inference of discrimination.” Reynaga v. Roseburg Forest

Prods., 847 F.3d 678, 691 (9th Cir. 2017). For Brown’s § 1981 discrimination

claim, he must also show “that, but for race, [he] would not have suffered the loss

of a legally protected right.” Comcast, 140 S. Ct. at 1019. And for his WLAD

discrimination claim, he must show that his race was a “substantial factor” in the

adverse employment action. Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas Cty.,

404 P.3d 464, 471 (Wash. 2017).

We require “very little evidence to survive summary judgment in a

discrimination case, because the ultimate question is one that can only be resolved

through a searching inquiry—one that is most appropriately conducted by the

factfinder, upon a full record.” Reynaga, 847 F.3d at 691 (quotation omitted); see

also Mikkelsen, 404 P.3d at 473.

Brown has shown that he is a member of a protected class, that he applied

and was qualified for the RSIT position and the ATT position, that he was rejected

from the RSIT position repeatedly, and that he was prematurely removed from the

ATT position despite performing his work satisfactorily. Brown has further

3 alleged: the former president of his union told him that King County would never

hire a Supervisor “with braids”; Brown and several other minority employees

“were informed that [they] were not qualified to test for the [2011 RSIT] position”;

Brown was informed that he was “not qualified to be trained” for the 2012 RSIT

position despite finishing fourth in the testing behind the top three candidates who

were selected for the program; and Brown’s 2014 RSIT application was denied on

the ground that it was incomplete, even though he had previously submitted the

same application and it had never been denied on that basis before. Several other

minority rail operators submitted declarations that King County’s hiring system

was improperly rigged on the basis of race.

Brown has met the minimal burden required to state a prima facie case of

discrimination under federal and state law by showing that the circumstances

surrounding King County’s rejection of his RSIT promotion applications and

removal from the ATT position give rise to an inference of discrimination.

Accordingly, we REVERSE and REMAND the discrimination claims. Because

Brown has demonstrated a prima facie case, the burden shifts to King County to

provide a legitimate, non-discriminatory reason for the adverse employment

actions.

2. Brown also claims King County retaliated against him for filing

discrimination and retaliation complaints with King County’s Office of Civil

4 Rights. To establish a prima facie case of retaliation under § 1981 and the WLAD,

Brown must demonstrate that “[]he engaged in protected activity, that []he suffered

a materially adverse action, and that there was a causal relationship between the

two.” Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 422 (9th

Cir. 2013). For Brown’s § 1981 retaliation claim, he must show that the protected

activity was a “but-for” cause of the materially adverse action, id., and for his

WLAD retaliation claim, he must show that the protected activity was a

“substantial factor” in the adverse action, Allison v. Hous. Auth., 821 P.2d 34, 37

(Wash. 1991) (en banc).

Brown engaged in protected activity when he filed his discrimination and

retaliation complaints with King County. Brown has shown that, after he filed the

discrimination complaint in March 2013, King County selected him for the ATT

position in late June 2013 and then removed him from the position in early July

2013.3 One of the two people who decided to remove Brown from the position

knew at the relevant time that Brown “had raised issues of discrimination in the

past,” though she was “not sure” whether she knew Brown had filed a

discrimination complaint. Brown has further shown that, one year after he filed the

discrimination complaint and four months after he filed the retaliation complaint,

3 Brown also alleges that King County retaliated against him for filing the discrimination complaint by suspending him for a train infraction, but we AFFIRM the district court’s grant of summary judgment as to that claim.

5 King County disqualified his application for the 2014 RSIT promotion as

“incomplete,” even though he had submitted the same application in prior years

without any problems. There is a triable issue as to whether the person who

rejected Brown’s application knew about his discrimination complaint at the

relevant time.

Brown has stated a prima facie case of retaliation under federal and state law

by showing facts that support a plausible inference that his protected activity was a

but-for cause of his removal from the ATT position and the disqualification of his

2014 RSIT application. The temporal proximity between Brown’s protected

activity and these adverse actions, coupled with the decisionmakers’ knowledge of

that activity, is sufficient to satisfy Brown’s burden at the first step of the

McDonnell Douglas framework. Accordingly, we REVERSE and REMAND

Brown’s retaliation claims for further proceedings.

AFFIRMED IN PART AND REVERSED AND REMANDED IN

PART.

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