NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 13 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HUNG NGUYEN, Nos. 18-56410 19-55370 Plaintiff-Appellant, D.C. No. v. 8:17-cv-00423-JVS-KES

REGENTS OF THE UNIVERSITY OF

CALIFORNIA; FARYAR JABBARI, in his MEMORANDUM* individual capacity; GREGORY WASHINGTON, in his individual capacity; DIANE K. O'DOWD, in her individual capacity; ENRIQUE J. LAVERNIA, in his individual capacity; DOES, 1 through 10,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted July 20, 2020 Pasadena, California

Before: BEA and BADE, Circuit Judges, and DRAIN,** District Judge.

Plaintiff-Appellant Hung Nguyen appeals the district court’s grant of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation. summary judgment in favor of Defendants-Appellees, the Regents of the

University of California (the “Regents”) and individual administrators (the

“individual Defendants”) at the University of California, Irvine (“UCI”). Nguyen,

a former UCI engineering professor, asserted employment discrimination and

retaliation claims under 42 U.S.C. § 1983 and Title IX against the Regents and the

individual Defendants. Nguyen alleged that the individual Defendants denied him

tenure because of his sexual orientation, in violation of the Equal Protection Clause

of the Fourteenth Amendment, and that the Regents’ conduct amounted to

deliberate indifference to these acts, in violation of Title IX. Nguyen also appeals

the district court’s award of attorney’s fees to Defendants under 42 U.S.C. § 1988.

We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, Asarco LLC v.

Atl. Richfield Co., 866 F.3d 1108, 1118 (9th Cir. 2017), we affirm the district

court’s grant of summary judgment; however, we conclude that the district court

abused its discretion by awarding fees. See Miller v. City of Portland, 868 F.3d

846, 850 (9th Cir. 2017). Thus, we vacate the attorney’s fee award and remand to

the district court for further consideration.

1. To prevail on his § 1983 employment discrimination claims, Nguyen

must prove “that the defendants, acting under color of state law, discriminated

against [him] as [a] member[] of an identifiable class and that the discrimination

was intentional.” Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134

2 (9th Cir. 2003). Although a constitutional claim, the parties agree that the

McDonnell Douglas burden-shifting analysis applies. See Anthoine v. N. Cent.

Cntys. Consortium, 605 F.3d 740, 753 (9th Cir. 2010). Under this standard,

Nguyen bears the initial burden of establishing a prima facie case of

discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). If he does, the burden of production shifts to Defendants to provide a

legitimate, nondiscriminatory reason for the adverse action. Chuang v. Univ. of

Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123–24 (9th Cir. 2000). If Defendants

meet this burden, Nguyen “must show that the articulated reason is pretextual.” Id.

at 1124. When, as here, the plaintiff presents only circumstantial evidence of

discrimination, evidence of pretext must be both “specific and substantial” to

survive summary judgment. EEOC v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir.

2009) (quoting Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir.

2005)).

The district court concluded that Nguyen failed to state a prima facie case of

discrimination against three of the individual Defendants—Enrique Lavernia,

Diane O’Dowd, and Gregory Washington—because a rational factfinder could not

conclude that each knew Nguyen’s sexual orientation. We agree that the record

contains no evidence of knowledge by either Lavernia or O’Dowd. Thus,

Nguyen’s claims against these individual Defendants fail at the step one of

3 McDonnell Douglas. See Robinson v. Adams, 847 F.2d 1315, 1317 (9th Cir. 1987)

(concluding that McDonnell Douglas cannot create an inference of intentional

discrimination when the defendants were unaware of the plaintiff’s protected

characteristic). But the same cannot be said about Washington. In contrast to the

district court’s conclusion, the record contains evidence—a declaration from

Nguyen’s former partner—that Washington knew of Nguyen’s sexual orientation.

And as the district court found, a factfinder could conclude that the fourth

individual Defendant, Faryar Jabbari, knew as well.

Nonetheless, Defendants contend that Nguyen’s discrimination claims fail at

step one of McDonnell Douglas as to each Defendant. Specifically, they argue that

Nguyen did not produce evidence that he was performing competently in his role,

and thus, was not qualified to receive tenure. We disagree. At step one of

McDonnell Douglas, a plaintiff “must produce . . . ‘very little’” evidence.

Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004) (quoting

Chuang, 225 F.3d at 1124). And he demonstrates he is sufficiently qualified for

purposes of his prima facie case when, as here, he “was considered by the

University for promotion.” Laborde v. Regents of Univ. of Cal., 686 F.2d 715, 718

(9th Cir. 1982). Accordingly, we conclude that Nguyen stated a prima facie case

of discrimination against both Jabbari and Washington.

Nonetheless, Nguyen’s remaining discrimination claims fail at step three of

4 McDonnell Douglas. Defendants offered legitimate, nondiscriminatory reasons for

denying him tenure—specifically, his limited record of academic publications, lack

of success in obtaining external funding, and his lukewarm third-party reviews.

See Lynn v. Regents of Univ. of Cal., 656 F.2d 1337, 1344 (9th Cir. 1981)

(“Without doubt, deficient scholarship is a legitimate, nondiscriminatory reason to

deny salary increases or tenure.”). Nguyen failed to demonstrate that these reasons

were pretextual. In contrast to his arguments, we find nothing inconsistent about

the individual Defendants’ justifications for denying him tenure. See Aragon v.

Republic Silver State Disposal Inc., 292 F.3d 654, 661 (9th Cir. 2002). Similarly,

although Nguyen points to evidence in the record indicating that others with

similar discrete achievements received tenure, he fails to identify another

individual who received tenure and was “similar [to him] in material respects.”

Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108, 1114 (9th Cir. 2011). Thus,

Nguyen failed to rebut Defendants’ reasons for denying him tenure. Accordingly,

the district court correctly granted summary judgment on Nguyen’s employment

discrimination claims.

2. For the same reasons, we find that the district court correctly granted

summary judgment to the Regents on Nguyen’s Title IX sexual orientation

discrimination claim. Assuming such a claim is cognizable, the McDonnell

Douglas framework applies with equal force because Nguyen’s claims “mirror

5 those” against the individual Defendants under § 1983. Campbell v. Hawaii Dep’t

of Educ., 892 F. 3d 1005, 1023 (9th Cir. 2013). Thus, because Nguyen’s claims

fail against the individuals under McDonnell Douglas—whether at step one or step

three—his claims against the Regents also fail. See id.; Reese v. Jefferson Sch.

Dist. No. 14J, 208 F.3d 736, 739 (9th Cir. 2000).1

3. Summary judgment was also appropriate on Nguyen’s § 1983 claim

that the individual Defendants retaliated against him in violation of the Equal

Protection Clause. To prevail on this claim, Nguyen must show “(a) that he . . .

was engaged in protected activity, (b) that he . . . suffered an adverse action, and

(c) that there was a causal link between the two.” Emeldi v. Univ. of Or., 698 F.3d

715, 724 (9th Cir. 2012). He has not done so here.

Nguyen identifies three purported protected actions: (1) drafting a letter

during the tenure process containing an allegation of sexual orientation

discrimination; (2) submitting the final copy of that letter, which lacked the

specific allegations contained in his earlier draft, as part of his tenure file; and

(3) formally alleging to a non-defendant administrator that he was denied tenure

because of his sexual orientation. Nguyen fails to show, however, that any

1 We need not determine, as the district court did, whether Title IX’s implied cause of action extends to sex discrimination claims brought by employees of federally-funded institutions because we affirm on alternate grounds. See Cairns v. Franklin Mint Co., 292 F.3d 1139, 1155 n.14 (9th Cir. 2002).

6 Defendant was aware of the allegations in his draft letter or the formal allegation.

Thus, he cannot demonstrate a causal connection between these actions and

Defendants’ conduct. See Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d

1185, 1197–98 (9th Cir. 2003). And, although the individual Defendants knew of

Nguyen’s final letter, the allegations within it were too vague to constitute an

assertion of Nguyen’s Fourteenth Amendment rights.2 Accordingly, Nguyen failed

to state a prima facie case of retaliation. For the same reasons, his Title IX

retaliation claim lacked evidence sufficient to survive summary judgment. See

Emeldi, 698 F.3d at 724.

4. Finally, Nguyen argues that the district court erred by awarding

Defendants $144,670 in attorney’s fees.3 In actions brought pursuant to § 1983

and Title IX, “the court, in its discretion, may allow the prevailing party . . . a

reasonable attorney’s fee.” 42 U.S.C. § 1988(b). When the prevailing party is a

defendant, the court may award fees when it finds that the action was “frivolous,

unreasonable, or without foundation.” Christiansburg Garment Co. v. EEOC, 434

U.S. 412, 421 (1978). When the action contains both frivolous and non-frivolous

claims, however, the prevailing “defendant must demonstrate that the work for

2 Additionally, Nguyen’s formal allegation occurred after UCI’s decision to deny him tenure. Thus, Nguyen cannot establish a causal connection between the allegation and the final decision to deny him tenure. 3 Nguyen does not challenge the district court’s separate award of $11,852.12 in costs. See Fed. R. Civ. P. 54(d)(1).

7 which it asserts that it is entitled to fees would not have been performed but for the

inclusion of the frivolous claims.” Harris v. Maricopa Cnty. Superior Ct., 631

F.3d 963, 972 (9th Cir. 2011). “A district court abuses its discretion when it

awards fees ‘based on an inaccurate view of the law or a clearly erroneous finding

of fact.’” Wilcox v. City of Reno, 42 F.3d 550, 553 (9th Cir. 1994) (quoting Corder

v. Gates, 947 F.2d 374, 377 (9th Cir. 1991)).

Here, the district court awarded fees to Defendants, who jointly and

severally incurred those fees, after concluding that Nguyen should have known that

each of his claims was frivolous after the conclusion of discovery. The district

court based this determination, in part, on Nguyen’s failure after fourteen months

of discovery to establish a prima facie case of either discrimination or retaliation.

For the reasons discussed previously, we agree that Nguyen failed to prove a prima

facie case of discrimination by both Lavernia and O’Dowd, as well as prima facie

case of retaliation under both Title IX and § 1983 against each Defendant. We

thus conclude that the district court did not abuse its discretion in finding that these

claims were frivolous.

We cannot say the same about Nguyen’s discrimination claims against

Jabbari, Washington, and the Regents. The district court concluded Nguyen’s

prima facie case failed because he could not show that Defendants’

nondiscriminatory reasons for denying tenure were pretextual. This, however, is a

8 question distinct from whether Nguyen proved a prima facie case of

discrimination. See Chuang, 225 F.3d at 1126–27. Because we conclude that

Nguyen’s introduced evidence sufficient at step one of McDonnell Douglas—at

least with respect to Jabbari, Washington, and the Regents—we conclude that the

district court relied on a partially erroneous view of the law in awarding

Defendants fees for work performed defending those claims.

In light of our conclusion, we remand to the district court to determine

whether Nguyen’s discrimination claims against Jabbari, Washington, and the

Regents were “frivolous, unreasonable, or without foundation” notwithstanding his

introduction of evidence sufficient to prove a prima facie case of discrimination

under McDonnell Douglas. See Christiansburg Garment Co., 434 U.S. at 421. If

the district court finds that any of these claims were not frivolous, it should

determine the extent to which Defendants are entitled to only those fees that they

would not have incurred “but for the need to defend against the frivolous claims.”

Harris, 631 F.3d at 973.

The district court’s grant of summary judgment is AFFIRMED. We

VACATE and REMAND the district court’s attorney’s fee award for further

proceedings consistent with this order. The parties shall bear their own costs on

appeal.

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