Maner v. Dignity Health

• Decision Date: 20 August 2021
• Docket Number: No. 18-17159,18-17159
• Citation: 9 F.4th 1114
• Parties: William MANER, Plaintiff-Appellant, v. DIGNITY HEALTH, f/k/a Catholic Healthcare West, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

9 F.4th 1114

William MANER, Plaintiff-Appellant,

v.DIGNITY HEALTH, f/k/a Catholic Healthcare West, Defendant-Appellee.

No. 18-17159

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 2021 Portland, Oregon

Filed August 20, 2021

Carolyn A. Kubitschek (argued), Lansner & Kubitschek, New York, New York; Paul B. Eaglin, Eaglin Law Office, Syracuse, New York; for Plaintiff-Appellant.

Lindsay J. Fiore (argued) and Stephanie J. Quincy, Greenberg Traurig LLP, Phoenix, Arizona, for Defendant-Appellee.

Before: William A. Fletcher, Carlos T. Bea, and Michelle T. Friedland, Circuit Judges.

BEA, Circuit Judge:

Title VII of the Civil Rights Act of 1964 prohibits covered employers from discriminating against any individual because of that individual's sex and from retaliating against those who oppose unlawful employment practices. See 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). The main question presented in this case is whether an employer who exhibits preferential treatment toward a supervisor's sexual or romantic partner discriminates against other employees because of their sex. We hold that discrimination motivated by an employer's "paramour preference" is not unlawful sex discrimination against the complaining employee within the ordinary public meaning of Title VII's terms. We affirm the district court's award of summary judgment to the employer on that basis and for the additional reasons expressed herein.

I. BACKGROUND

William "Bo" Maner worked as a biomedical design engineer in the obstetric and gynecological laboratory of Dr. Robert Garfield for several decades.¹ Garfield's lab depends upon a steady stream of grant awards to fund employee salaries and performs research with an eye toward publishing data and developing marketable intellectual property. Maner contributed to the work of Garfield's lab by recruiting research subjects, analyzing project data, preparing grant applications, and assisting with patent filings.

From 1999 to 2008, Garfield's laboratory operated out of the University of Texas Medical Branch in Galveston, Texas. Maner's coworkers included Dr. Yuan Dong, a male researcher, and Dr. Leili Shi, a female researcher. Maner learned shortly after joining the lab that Garfield and Shi were engaged in a long-term romantic relationship that began as a workplace affair while Garfield was married to another woman. Garfield and Shi lived together and occasionally demonstrated physical affection at workplace events. Garfield brought Shi with him to research conferences to which other employees were not invited and conferred upon Shi a greater share of workplace opportunities related to publications and intellectual property than Maner felt she should have received.

In January 2008, Garfield decided to relocate the lab to an installation operated by Dignity Health in Phoenix, Arizona. Garfield persuaded Dignity Health to extend offers of employment at the new facility to the existing team. Maner accepted the offer and prepared to join Garfield, Dong, and Shi in Phoenix. That April, however, Maner was arrested at work in Galveston by state and local police for the alleged aggravated sexual assault of his seven-year-old daughter. Maner denied the allegations but pleaded guilty to a lesser included state law offense. Maner moved to Phoenix while the charges were pending and received several positive performance reviews and merit pay increases. For example, Garfield complimented Maner in one review as "solid as a rock" and thanked him for "[o]verall an outstanding performance."

In August 2010, a Texas trial court sentenced Maner to eight years' probation, the terms of which required Maner to reside within the state of Texas and to check in monthly with probation officials in Galveston. In November 2010, Garfield approved a remote work arrangement whereby Maner would support Garfield's lab from a satellite office in Galveston while serving out his probation. Pursuant to this arrangement, Maner retained his position and promised to work full time on tasks conducive to independent and remote completion.

Garfield's lab soon began to suffer from a decline in the grant funding used to fund employee salaries and research projects. In 2010, Garfield recommended Dignity Health eliminate Dong's position to alleviate the lab's funding shortage. When the employer accepted this recommendation, Dong allegedly complained to Dignity Health officials about Garfield's ongoing romantic relationship with Shi. Dignity Health responded by assigning Dr. Ron Lukas to investigate the relationship. During an interview with Lukas about Garfield and Shi, Maner raised no concerns about the couple's relationship or its impact on other employees. Upon conclusion of the investigation, Dignity Health reassigned Shi to a different supervisor on paper but allowed Shi to continue working in the lab with Garfield.

In August 2011, Garfield submitted a highly negative review of Maner's performance since the beginning of the remote work arrangement. Garfield rated Maner as "Needs Improvement" across almost every evaluation metric and noted that although Maner "has helped occasionally on analysis of data ... it is not always possible to contact him." Garfield recommended Maner "either return to Phoenix immediately or [that] his position be terminated." Maner responded to the performance evaluation in two emails sent to Dignity Health officials. The first was an email sent to Lukas on August 27 ("the Lukas Letter") that urged Dignity Health to retain Maner's remote position because of his record of positive performance and the potential availability of new sources of grant funding. The second was a direct reply to the review on August 29 ("the Review Response") that challenged Garfield's claims, argued the negative review was prompted by funding concerns, and offered to take actions to improve his performance.

Dignity Health eliminated Maner's position on October 1, 2011, citing Maner's poor performance review and the lab's lack of funding. On October 11, Maner protested the termination in a letter sent to Dignity Health's Senior Vice President for Human Resources, Herbert Vallier ("the Vallier Letter"). In this post-termination letter, Maner challenged the rationales for his termination as pretextual and accused "management" of "fabricat[ing]" the negative performance evaluation, appropriating laboratory funds "in a nepotistic manner," "violat[ing] EEOC articles," and committing "unfair labor practices." Vallier responded on October 17 with a letter agreeing with the termination decision; Maner received his final paycheck on October 29, 2011.

Maner soon thereafter filed charges against Dignity Health before the federal Equal Employment Opportunity Commission ("EEOC"), the administrative agency tasked with enforcing Title VII's antidiscrimination provisions. See 42 U.S.C. § 2000e-4. The EEOC declined to act and issued a notice that confirmed Maner had exhausted administrative remedies as required by Title VII and permitted him to bring suit in federal court. Maner proceeded to file a complaint in the U.S. District Court for the District of Arizona. See id. § 2000e-5(e)(1), (f)(1).

In the operative complaint, Maner brought a Title VII sex discrimination claim alleging that Dignity Health protected Shi (a female employee) from the impacts of reduced lab funding by terminating Maner (a male employee). See id. § 2000e-2(a)(1). Maner also brought a Title VII retaliation claim alleging that Dignity Health terminated him for protesting Garfield's favoritism toward Shi at the expense of other employees. See id. § 2000e-3(a). To remedy these alleged violations, Maner sought compensatory and punitive damages, injunctive relief, and attorneys' fees and costs.

Dignity Health moved for summary judgment on the grounds that Maner failed to state a cognizable claim of sex discrimination, failed to establish a prima facie case of sex discrimination or retaliation, and failed to rebut the employer's explanations for the termination with evidence of pretext. The district court granted the motion and entered judgment for the employer. See Maner v. Dignity Health , 350 F. Supp. 3d 899 (D. Ariz. 2018).

As to the sex discrimination claim, the district court determined that Maner complained of discrimination based not on his sex, but on Garfield's preference for Shi as a romantic partner. The court construed the claim as arising under the "paramour preference" theory of Title VII liability, which posits that an employer engages in unlawful sex discrimination whenever a supervisor's relationship with a sexual or romantic partner results in an adverse employment action against another employee (here, against a male employee because of a female paramour). Id. at 903–04. The court noted that while our circuit had not yet foreclosed the availability of "paramour preference" claims under Title VII, nearly every other circuit and the EEOC had already rejected the theory as inconsistent with the statute and its implementing regulations. Id. at 904–05. Relying on these out-of-circuit authorities, the court held that Maner's undisputed evidence of Garfield's relationship with and favoritism toward Shi did not establish a sex discrimination claim under Title VII. Id. at 906.

As to the retaliation claim, the district court concluded that Maner's references to "nepotism," EEOC articles, and labor law in the Vallier Letter of October 11, 2011, might reasonably be viewed by a jury as having put Dignity Health on notice that Maner opposed Garfield's relationship with Shi. Id. at 907. Relying on Learned v. City of Bellevue , 860 F.2d 928 (9th Cir. 1988), however, the court held that Maner failed to establish that he engaged in protected activity because his complaints in the Vallier Letter did not oppose an employment practice that "fairly f[e]ll within" the prohibitions of Title VII. Maner , 350 F. Supp. 3d at 909.

Maner timely appealed and filed a pro se opening brief. We subsequently...