Constance George v. House of Hope Recovery ( 2021 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CONSTANCE GEORGE, No. 18-35551
Plaintiff-Appellant, D.C. No. 3:15-cv-01277-SB
v.
MEMORANDUM*
PATRICIA BARCROFT; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Stacie F. Beckerman, Magistrate Judge, Presiding
Argued and Submitted November 9, 2021**
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel heard oral argument on Plaintiff-Appellant’s claims against
Patricia Barcroft and House of Hope Recovery. But the panel unanimously
concluded that, as to Plaintiff-Appellant’s claims against Bridges to Change, Inc.
and Washington County Department of Housing Services, the case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GRABER and CHRISTEN, Circuit Judges, and R. COLLINS,*** District
Judge.
Constance George appeals the district court’s judgment in favor of Patricia
Barcroft, House of Hope Recovery, Bridges to Change, Inc., and Washington
County Department of Housing Services (Washington County). George alleges
defendants discriminated against her on the basis of her race and religion. We lack
jurisdiction to review George’s appeal from the dismissal of her claims against
Bridges to Change and Washington County. We affirm the district court’s
judgment as to George’s claims against Barcroft and House of Hope.
We review de novo the timeliness of a notice of appeal, United States v.
Withers, 638 F.3d 1055, 1061 (9th Cir. 2011), and a district court’s order granting
summary judgment, Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d
1142, 1156 (9th Cir. 2013). We may consider jurisdictional questions at any time.
See Rowe v. United States, 633 F.2d 799, 800 (9th Cir. 1980).
1. We have jurisdiction over George’s claims on appeal if: (1) she
appealed a “final decision[],” 28 U.S.C. § 1291; (2) her appeal was timely, see
Portland Fed. Emps. Credit Union v. Cumis Ins. Soc’y, Inc., 894 F.2d 1101, 1103
***
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
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(9th Cir. 1990); and (3) she complied with “the notice required by Rule 3,” Smith v.
Barry, 502 U.S. 244, 248–49 (1992).
George indicated her intent to appeal the district court’s April 20, 2018
judgment by filing a motion for pro bono counsel in the district court on May 21,
2018. The April 20, 2018 judgment was final because the district court had fully
adjudicated George’s claims and the judgment indicated finality as to all claims
and parties. See Casey v. Albertson’s Inc., 362 F.3d 1254, 1258 (9th Cir. 2004);
see also Hall v. City of Los Angeles, 697 F.3d 1059, 1070 (9th Cir. 2012) (“Once a
district court enters final judgment and a party appeals, . . . earlier, non-final orders
become reviewable.”). George’s notice of appeal was timely because she filed her
motion for pro bono counsel with the district court within 30 days after entry of the
judgment. See Fed. R. App. P. 4(a)(1)(A). And because George’s motion gave
notice of her intent to appeal the court’s final judgment, we construe her motion to
be the “functional equivalent” of a formal notice of appeal. Smith, 502 U.S. at 248.
However, George did not serve her notice of appeal on Bridges to Change or
Washington County. As such, she did not comply with the requirements of Federal
Rule of Appellate Procedure 3 as to those two defendants. The purpose of a notice
of appeal “is to ensure that the filing provides sufficient notice to other parties and
the courts.” Id. (emphasis added); see also In re Sweet Transfer & Storage, Inc.,
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896 F.2d 1189, 1193 (9th Cir. 1990) (“In prior cases, we have required the
document in question to have been served upon the other parties.”), superseded in
part by rule as stated in In re Arrowhead Ests. Dev. Co., 42 F.3d 1306 (9th Cir.
1994). Accordingly, we conclude that we lack jurisdiction over George’s appeal of
her claims against Bridges to Change and Washington County. We consider the
merits of the appeal as to Barcroft and House of Hope.
2. George alleges the district court erred in granting summary judgment
on her religious discrimination claims against House of Hope and Barcroft. We
analyze Fair Housing Act “disparate treatment claims under Title VII’s three-stage
McDonnell Douglas/Burdine test.” Gamble v. City of Escondido, 104 F.3d 300,
305 (9th Cir. 1997). To establish a disparate treatment claim, “the plaintiff must
first establish a prima facie case.” Id. The district court concluded George failed
to establish a prima facie case because it found “no evidence in the record that
Barcroft did not terminate a non-Jehovah’s Witness resident under similar
circumstances.” Although the prima facie stage of the McDonnell-Douglas
framework is “not onerous,” George bore the burden to produce some evidence of
the defendants’ treatment of a similarly situated individual. See Lyons v. England,
307 F.3d 1092, 1112 (9th Cir. 2002).
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On appeal, George offers a new theory of “reasonable inferences,” but her
theory is based on evidence that was not presented to the district court.1 We affirm
the district court’s order granting summary judgment in favor of House of Hope
and Barcroft because George failed to present “any legitimate ‘comparator’
evidence on her religious discrimination claim,” Bodett v. CoxCom, Inc., 366 F.3d
736, 744 (9th Cir. 2004), and because her “reasonable inferences” theory relies on
evidence she did not present to the district court.
3. George urges us to remand her discrimination claims to the district
court. First, she contends the district court should consider whether the Fair
Housing Act’s religious exception, 42 U.S.C. § 3607(a), applies to Barcroft and
House of Hope. Because we affirm the district court’s decision that George did
“not present[] any evidence of disparate treatment on the basis of religion,” we
decline to remand for the district court to consider this exception. George also
requests remand for the district court to consider whether a new trial is warranted
on her racial discrimination claim, but she fails to assert any colorable argument as
1
George contends she had “no occasion” to present her “reasonable
inferences” theory to the district court because the district court sua sponte
addressed her failure to make a prima facie showing. However, George expressly
argued in her opposition to Barcroft and House of Hope’s motion for summary
judgment that she had established a prima facie case pursuant to the Fair Housing
Act, and she did not ask the district court for an opportunity to present more
evidence.
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to why remand of that claim is warranted. Accordingly, we decline to grant
George’s request for remand.
AFFIRMED IN PART and DISMISSED IN PART.
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