Schmitz

MEMORANDUM *

After a one-week bench trial, the district court granted Dean Schmitz partial relief on his various Title VII claims against M&M/Mars (“Mars”). Schmitz appeals and Mars cross-appeals from the district court judgment. Because the relevant facts are known to the parties they are not repeated here.

I

Schmitz challenges the district court’s denial of his hostile work environment-based retaliation claim. Schmitz contends that the district court erred because there was sufficient evidence to establish that supervisor Carl Ruffin engaged in inappropriate, racially motivated misconduct. While it found that Ruffin could be abusive and that he lacked credibility as a witness, the district court nonetheless concluded that Schmitz failed to establish adequately that Ruffin’s harassment was race based.

We agree with the district court which explicitly found that Ruffin treated other Mars associates in a similar manner. When a manager treats employees of different genders and races in the same manner, even if offensive, it is not actionable under Title VII. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 , 118 S.Ct. 998 , 140 L.Ed.2d 201 (1998) (“Title VII does…

Concurring.

I concur with the majority’s conclusion that Schmitz failed to prove his retaliation-based hostile environment claim, although I believe it reads Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 , 118 S.Ct. 998 , 140 L.Ed.2d 201 (1998), too broadly.

I am troubled, however, by the majority’s de novo analysis of the “sufficiency” of Mars’ proffered nondiscriminatory reason for denying Schmitz an interview. As I see it, either (1) the district court’s finding that the reason was “insufficient” was actually a finding of pretext, which should be reviewed for clear error, St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 524 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993); Trent v. Valley Elec. Ass’n, Inc., 195 F.3d 534, 537 (9th Cir.1999), or (2) the finding that the reason was not pretextual should have ended the matter and any further review of sufficiency was an error of law. Unfortunately, the district court’s findings of fact and conclusions of law are not a model of clarity and we are left wondering what the court intended.

The district court might have meant, despite her word choice, that she found Mars’ sixth explanation — that it refused to interview Schmitz…