                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 11 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ADIL LAHRICHI,                                   No. 06-35382

              Plaintiff - Appellant,             D.C. No. CV-04-02124-JCC

  v.
                                                 MEMORANDUM*
LUMERA CORPORATION, a Delaware
corporation; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                            Submitted April 12, 2011**
                               Seattle, Washington

Before: KLEINFELD, TASHIMA, and SILVERMAN, Circuit Judges.


       Adil Lahrichi appeals the district court’s grant of summary judgment to

Lumera Corporation on his Title VII and 42 U.S.C. § 1981 claims, and claims of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
negligent and intentional infliction of emotional distress, as well as the grant of

summary judgment to Microvision on Lahrichi’s negligent supervision claim.



      A grant of summary judgment is reviewed de novo. Olsen v. Idaho State

Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004). This court views the evidence

in the light most favorable to Lahrichi to determine if there was “no genuine issue

as to any material fact and whether the defendants were entitled to judgment as a

matter of law.” Crowe v. Cnty. of San Diego, 608 F.3d 406, 427 (9th Cir. 2010)

(quoting Mueller v. Auker, 576 F.3d 979, 991 (9th Cir. 2009)).



      The district court was correct in granting summary judgment on Lahrichi’s

Title VII and § 1981 claims. Under Title VII, a plaintiff can either establish a

prima facie case under the burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), or “simply produce direct or circumstantial

evidence demonstrating that a discriminatory reason more likely than not

motivated” the employer. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th

Cir. 2004). Lumera has provided a legitimate, nondiscriminatory reason for

Lahrichi’s termination that Lahrichi fails to show is pretextual. Therefore,

“[u]nder either approach,” Lahrichi “must produce some evidence suggesting that”


                                           2
Lumera’s action “was due in part or whole to discriminatory intent.” McGinest,

360 F.3d at 1122. Lahrichi has failed to produce evidence of discriminatory intent.

Similarly, Lahrichi’s 42 U.S.C. § 1981 claim fails because Lahrichi failed to

produce evidence of discriminatory intent. Gay v. Waiters’ & Dairy Lunchmen’s

Union, 694 F.2d 531, 539 (9th Cir. 1982).



      Lahrichi’s claims of intentional infliction of emotional distress and negligent

infliction of emotional distress were properly dismissed. Lumera’s CEO Thomas

Mino did not owe Lahrichi a duty of care under Washington law. In Washington,

“employers do not owe employees a duty to use reasonable care to avoid the

inadvertent infliction of emotional distress when responding to workplace

disputes.” Snyder v. Med. Serv. Corp. of E. Wash., 35 P.3d 1158, 1163-64 (Wash.

2001). Additionally, no reasonable jury could find that Mino’s behavior during

Lahrichi’s termination was “outrageous” as defined in Birklid v. Boeing, 904 P.2d

278, 286 (Wash. 1995).



      Because the above claims fail, there is no underlying injury Lahrichi can

prove at trial to support his negligent supervision claim. Under Washington law,

Lahrichi must establish that he was injured, and then (1) that Mino was acting


                                         3
outside the scope of his employment, (2) that Mino presented a risk of danger or

harm, (3) that Microvision knew or should have known that Mino posed such a risk

to Lahrichi, and (4) that Mino proximately caused Lahrichi’s injuries. Niece v.

Elmview Group Home, 929 P.2d 420, 426-28 (Wash. 1997). Since there was no

underlying injury, the district court was correct in granting Lumera summary

judgment as to Lahrichi’s negligent supervision claim.



      Lahrichi’s procedural claims fail, as well. The district court did not abuse its

discretion when it permitted Lumera to amend its answer. Owens v. Kaiser Found.

Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). The amendment of the

answer did not cause Lahrichi undue prejudice, was not be sought in bad faith, and

did not constitute an exercise in futility. DCD Programs, Ltd. v. Leighton, 833

F.2d 183, 186 (9th Cir. 1987). The district court did not abuse its discretion by

ordering production of Lahrichi’s medical records and bank records. Nigg v. U.S.

Postal Serv., 555 F.3d 781, 790 (9th Cir. 2009) (citing United States v. Kitsap

Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002)). The district court did not

abuse its discretion in finding that Lahrichi’s medical records were not protected

by psychotherapist-patient privilege, because when a plaintiff puts his emotional

condition at issue during a trial, he waives privilege protecting his psychological


                                          4
records. Maynard v. City of San Jose, 37 F.3d 1396, 1402 (9th Cir. 1994). This

court gives “wide latitude” to the district court’s authority on discovery sanctions.

Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1178 (9th Cir. 2008).

The district court did not abuse its discretion by imposing discovery sanctions

when Lahrichi failed to comply with the discovery orders. Id.



      The district court did not abuse its discretion in denying Lahrichi’s motion to

re-tax costs, because there is a presumption in favor of taxing costs to the losing

party, and Lahrichi did not demonstrate indigence and did not show misconduct by

Lumera. Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999).



      Regarding the redaction motion, a district court has broad discretion in

deciding whether to modify protective orders. Empire Blue Cross & Blue Shield v.

Janet Greeson’s A Place For Us, Inc., 62 F.3d 1217, 1219 (9th Cir. 1995). The

district court did not abuse that discretion.



      AFFIRMED.




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