                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 11 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 ROCCO T. LOMBARDI, an individual,               No.    15-55276

                 Plaintiff-Appellant,            D.C. No.
                                                 2:13-cv-03328-JAK-AJW
   v.

 JULIAN CASTRO, Secretary, U.S.                  MEMORANDUM*
 Department of Housing and Urban
 Development,

                 Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   John A. Kronstadt, District Judge, Presiding

                            Submitted January 9, 2017**
                               Pasadena, California

Before: TALLMAN and FRIEDLAND, Circuit Judges, and FABER,*** District
Judge.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
      Rocco Lombardi appeals the district court’s grant of summary judgment to

the Department of Housing and Urban Development (“HUD”) in his Title VII

employment retaliation case. Because we conclude that Lombardi did not carry his

burden to show a triable issue of material fact about whether HUD’s denial of his

applications for two higher level positions was caused by a retaliatory purpose, or

that HUD’s reasons for preferring other candidates were pretextual, we affirm.

      Title VII of the Civil Rights Act of 1965, 42 U.S.C. 2000e et seq. (“Title

VII”), prohibits retaliation against an employee engaging in an activity protected

by Title VII, such as filing Equal Employment Opportunity (“EEO”) complaints or

participating in a Title VII proceeding. 42 U.S.C. § 2000e-3(a); see Poland v.

Chertoff, 494 F.3d 1174, 1180 (9th Cir. 2007); Ray v. Henderson, 217 F.3d 1234,

1240 n.3 (9th Cir. 2000). There is a three-step burden-shifting framework for

considering a grant of summary judgment in an employment retaliation case.

Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). To establish a

triable issue, the plaintiff first must prove a prima facie case by showing “(1)

involvement in a protected activity, (2) an adverse employment action[,] and (3) a

causal link between the two.” Id. Second, the burden shifts to the defendant to

present a legitimate reason for the adverse employment action. Id. Third, the

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burden shifts back to the plaintiff to “demonstrate a genuine issue of material fact

as to whether the reason advanced by the employer was a pretext.” Id. “Only then

does the case proceed beyond the summary judgment stage.” Id.

      Lombardi alleges that he was not selected for Contract Administrator

Oversight Monitor and Senior Project Manager positions because he engaged in

protected activities—filing previous EEO complaints. The parties have agreed that

Lombardi established the first two elements of his prima facie case. They dispute

whether he has shown a causal link between his previous EEO complaints and

being passed over for the promotions.

      The third element of a prima facie case requires showing “but-for causation,

not the lessened causation test stated in § 2000e-2(m),” which applies to

discrimination claims. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517,

2533 (2013); T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451,

472-73 (9th Cir. 2015) (applying the but-for causation standard from Nassar at the

summary judgment phase in an Americans with Disabilities Act retaliation case

and explaining that the retaliation standards under the ADA and Title VII are the

same), cert. denied sub nom. San Diego Unified Sch. Dist. v. T.B., 136 S. Ct. 1679

(2016). Lombardi’s evidence fails to create a triable issue that retaliatory purpose

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was a but-for cause of his failure to obtain the promotions in question. The

statements by the relevant decisionmaker that Lombardi relies upon do not suggest

an intent to retaliate against him, one of the two individuals promoted instead of

Lombardi had also engaged in protected EEO activity, and substantial time had

passed between Lombardi’s EEO activity and the decisions not to offer him the

promotions. Even if the various accusations Lombardi and his co-workers make

against the relevant decisionmaker may suggest weaknesses in her management

skills, they do not suggest an intent to retaliate against Lombardi for his protected

activity.

       Summary judgment in favor of HUD is also appropriate because, even if

Lombardi had made a prima facie showing of retaliation, he has not presented

evidence that creates a triable issue of fact as to whether HUD’s reasons for

choosing other candidates were pretextual. The pre-formulated interview

questions demonstrate that HUD had a preference for performance-based contract

administrator experience, and Lombardi admitted in his interviews that his limited

experience in that area was one of his weaknesses. The interviewers’

contemporaneous notes also make clear that Lombardi interviewed badly.

Lombardi has not even argued that most of the interviewers had a retaliatory intent,

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and they all agreed he should not be chosen for the positions.

      AFFIRMED.




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