                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 24 2016
                   UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


ALBERT OLE PETERSON,                             No. 13-35969

              Plaintiff - Appellant,             D.C. No. 2:12-cv-05025-TOR

 v.
                                                 MEMORANDUM*
NATIONAL SECURITY
TECHNOLOGIES, a Delaware
corporation,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Thomas O. Rice, District Judge, Presiding

                      Argued and Submitted October 14, 2015
                               Seattle, Washington

Before:       KOZINSKI, W. FLETCHER and FISHER, Circuit Judges.


      National Security Technologies (NST) presented evidence that

“[m]anagement ha[d] lost trust and confidence in Peterson” because he reported

the racist email to a lower-ranking employee and gave non-credible reasons for


          *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                                 page 2
failing to report the email to Employee Relations in accordance with company

policy. For these reasons, NST’s Disciplinary Action Review Board (DARB)

recommended firing Peterson. DARB member Kenneth Andriessen testified that

he provided the Board’s recommendation to Stephen Younger, president of NST.

According to Andriessen, Younger supported the decision to terminate. Thus, NST

produced evidence of a “legitimate, non-retaliatory reason” for terminating

Peterson’s employment. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108

(9th Cir. 2008).

      NST also established that it fired Folle shortly after it learned that he sent the

racist email, and that Mario Guerrero—who was not fired—followed company

policy by showing the racist email to his superior, Peterson. All of this evidence

allowed the jury to conclude that Peterson failed to meet his “ultimate burden of

persuasion,” Sanghvi v. City of Claremont, 328 F.3d 532, 537 (9th Cir. 2003), on

his federal- and state-law retaliation claims. Even if we were to assume that

Peterson was engaged in protected activity, the jury reasonably could have

declined to find that NST’s decision to terminate Peterson was “more likely than
                                                                                  page 3
not . . . motivated by a [retaliatory] reason.”1 Miller v. Fairchild Indus., Inc., 885

F.2d 498, 504 & n.4 (9th Cir. 1989); see Allison v. Hous. Auth. of Seattle, 821

P.2d 34, 42 (Wash. 1991) (holding that the Washington Law Against

Discrimination requires a “plaintiff to prove that retaliation was a substantial factor

behind the [adverse employment] decision”); see also Unt v. Aerospace Corp., 765

F.2d 1440, 1447 (9th Cir. 1985) (finding company did not fire employee “because

of any motive of reprisal for” employee filing grievances). Because there was

“evidence adequate to support the [verdict],” Peterson was not entitled to judgment

as a matter of law. Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002).2


      AFFIRMED.




      1
          Because the jury reasonably could have concluded that retaliation was not
a motivating factor behind NST’s decision to terminate, we need not decide
whether the more demanding but-for causation standard now applicable to
retaliation claims under Title VII also applies to Peterson’s claim under 42 U.S.C.
§ 1981. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
      2
       Because we uphold the verdict, we need not consider Peterson’s challenge
to NST’s affirmative defenses.
                                                                               FILED
Peterson v. National Security Technologies, No. 13-35969
                                                                               MAY 24 2016
FISHER, Circuit Judge, dissenting:                                          MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


      I disagree with the majority because, in my view, Peterson established

opposition and causation as a matter of law, and the district court’s denial of his

post-trial motions was consequently erroneous. The key question is whether his

chosen manner of reporting the perceived racism was reasonable under the

circumstances: if so, Peterson wins; if not, he loses. Because the jury did not reach

this issue and we cannot decide it as a matter of law, I would remand for a new jury

to decide it in the first instance. Because the majority does not – indeed, cannot –

resolve this dispositive issue, its decision only repeats the district court’s legal

error. Therefore, I respectfully dissent.

      A.     The jury presumably found Peterson did not engage in “opposition”

activity. That was error – and the majority does not contend otherwise. The

uncontroverted record evidence shows Peterson “took a stand” against racial

discrimination by providing an “ostensibly disapproving account” of the racist

email to Christian. Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555

U.S. 271, 276-77 (2009). Everyone involved agreed Peterson intended the email to

be reported to management and acted accordingly. In the context of a “whole

bunch” of other racial jokes in the workplace, Peterson opposed what he

                                            1
reasonably believed was an unlawful hostile environment. See EEOC v. Go Daddy

Software, Inc., 581 F.3d 951, 964 (9th Cir. 2009). No reasonable jury could have

concluded otherwise.

      The jury also presumably found Peterson failed to establish causation. That,

too, was error. When an employee engages in statutorily protected opposition

activity, that protected activity “c[an]not legally form the basis of [the employer’s]

decision to discharge him.” O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d

756, 763 (9th Cir. 1996). Here, it is undisputed that Peterson’s down-the-chain

reporting was the only basis for National Security Technology’s (NST) decision to

terminate him. Peterson thus established causation as a matter of law, as well.

      Peterson’s down-the-chain reporting nevertheless would have lost its

protected status if it was unreasonable under the circumstances, meaning it

“significantly disrupted the workplace” or “hindered his . . . job performance.”

EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1015 (9th Cir. 1983); see also

O’Day, 79 F.3d at 763-64 (“The opposition clause protects reasonable attempts to

contest an employer’s discriminatory practices . . . .” (emphasis added)). But the

jury never reached this issue – which was presented as a defense to liability – nor

can we decide it as a matter of law. There is little (if any) evidence that Peterson’s

activity “interfere[d] with [his] job performance” or “significantly disrupted the

                                           2
workplace.” Crown Zellerbach, 720 F.2d at 1015. The jury could have concluded

that violating NST’s reporting policy was unreasonable; but it might have found it

reasonable in light of evidence that NST would have ignored Peterson’s complaint

had he followed the rules. Because we cannot determine whether Peterson’s

opposition activity lost its protected status, remand is appropriate.

      B.      Each of the majority’s contrary conclusions rests on legal error. First,

the majority cites two reasons why NST’s loss of faith and trust in Peterson could

have been a legitimate basis for his termination. The first rationale – that he lied to

the Employee Relations investigator – is not supported by the record, and neither

party has ever suggested otherwise. The second rationale – that Peterson violated

NST’s reporting policy – could not have been legitimate if “the specific instances

used to justify his termination involved protected conduct.” Mackowiak v. Univ.

Nuclear Sys., Inc., 735 F.2d 1159, 1163 (9th Cir. 1984). Absent a finding that

Peterson’s down-the-chain reporting was, in fact, unprotected, there is simply no

way to conclude that terminating him because he reported down the chain was

legitimate.

      Second, the majority errs in determining that, even assuming Peterson

engaged in protected activity, the jury could have found he failed to show

causation. The majority suggests the jury could have concluded Peterson was

                                           3
terminated because of the down-the-chain manner, as opposed to the fact, of his

opposition activity. But when an employee’s “means of opposition” are reasonable

– as Peterson’s down-the-chain reporting must have been, on the majority’s

assumption – those means also “receive protection under [the statute]” and cannot

be a legitimate basis for termination. Crown Zellerbach, 720 F.2d at 1015 n.4; see

id. at 1016 (holding an employer could not legitimately discipline employees for

“interfer[ing] with customer relations” because the means of their opposition

activity were reasonable).

      C.     In sum, the evidence establishes Peterson engaged in opposition

activity as a matter of law and was fired for doing so. The only relevant question

in dispute is whether NST can establish, by affirmative defense, that Peterson’s

opposition activity was unprotected because it was unreasonable, a question a jury

has not yet considered and which it should do on retrial. I would therefore set

aside the verdict and remand for a new trial on the reasonableness of Peterson’s

conduct and, if necessary, whether NST has established the elements of its defense

based on after-acquired evidence.




                                          4
