Hung Nguyen v. University of Ca Regents ( 2020 )

NOT FOR PUBLICATION FILED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
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(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
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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
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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
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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).
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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).
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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
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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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