                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 6 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SARKIS J. KHOURY,                               No.    15-56088

             Plaintiff-counter-defendant -      D.C. No.
             Appellant,                         5:13-cv-00716-JGB-DTB
 v.

REGENTS OF THE UNIVERSITY OF                    MEMORANDUM*
CALIFORNIA,

             Defendant-counter-claimant –
             Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                    Jesus G. Bernal, District Judge, Presiding

                        Argued and Submitted June 6, 2017
                              Pasadena, California

Before: LIPEZ,** BEA, and HURWITZ, Circuit Judges.

      After conducting an internal investigation, the Regents of the University of

California ("Regents") terminated Sarkis Khoury's employment as a professor of

finance at the University of California-Riverside's Anderson Graduate School of


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
Management and denied him emeritus status. Khoury then sued the Regents,

arguing that the investigation and subsequent actions violated Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a). The Regents countersued,

alleging Khoury had defrauded them by failing to disclose money earned from his

undisclosed and unauthorized side business and by failing to disclose money earned

from unauthorized teaching at a foreign university while on sabbatical.

      The district court entered summary judgment in favor of the Regents on

Khoury's Title VII claims, except for his claim that the initial investigation was in

retaliation for protected speech. That claim was tried before a jury, which rejected

it. On the first day of the trial, Khoury unsuccessfully sought a judgment as a matter

of law ("JMOL") on the Regents' counterclaims. The jury found in favor of the

Regents on the fraudulent concealment counterclaim, awarding $14,500 in damages.

At the conclusion of the trial, the Regents filed an application to tax costs as the

prevailing party, which the district court largely approved, ordering Khoury to pay

$19,691.47.

      On appeal, Khoury challenges the district court's summary judgment order

only insofar as it foreclosed him from arguing at trial that his termination and denial

of emeritus status were also the result of illegal retaliation. He also challenges the

district court's denial of his JMOL motion on the Regents' counterclaims and




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taxation of costs. We have jurisdiction over Khoury's appeal under 28 U.S.C.

§ 1291. We affirm.

      1.   When considering a motion for summary judgment on a Title VII

retaliation claim, courts follow the burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Dawson v. Entek

Int'l,, 630 F.3d 928, 936 (9th Cir. 2011). Under this framework, an employee must

set forth a prima facie case of retaliation. Id. To do this, the employee must

demonstrate that (1) he engaged in a protected activity under Title VII, (2) the

employer subsequently took an adverse employment action, and (3) a causal link

exists between the two events.      Id.   If the employee carries this burden, the

defendant-employer must set forth a legitimate non-retaliatory reason for taking the

adverse employment action. Id. If the defendant does so, the burden shifts back to

the plaintiff to produce evidence sufficient to raise a genuine issue of material fact

as to whether the reason proffered is mere pretext for retaliation. Id.

      The district court correctly found that Khoury failed to raise a genuine issue

of material fact at the pretext stage on the Regents' decision to terminate his faculty

position and deny him emeritus status. See id. The Regents terminated Khoury after

a disciplinary hearing involving two distinct sets of charges. The first set of charges

involved Khoury's actions regarding the university's hiring of a tenure-track faculty

member. Those charges and the university's investigation of them were the focus of



                                          3
the jury trial on Khoury's retaliation claim. The second set of charges involved

Khoury's alleged harassment of university staff, his unauthorized side business, and

his unauthorized outside teaching. The Regents' decision to terminate Khoury and

deny him emeritus status stemmed solely from the second set of charges. On this

second set of charges, Khoury had the benefit of a neutral hearing and decision

maker, unaffected by any retaliatory bias that allegedly gave rise to the first set of

charges. Under these circumstances, he failed to meet his burden at the final stage

of the McDonnell Douglas framework on the termination issue.

      2. The district court correctly denied Khoury's JMOL motion as untimely

because it was "not properly considered as a Rule 50 motion." The purpose of a

Rule 50 JMOL motion is to "save the time and trouble involved in a lengthy jury

determination when there is a clear insufficiency of evidence on one side of the case

or the other." 9B Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 2521 (3d. ed. 2008). Khoury's JMOL motion did not argue that the

Regents failed to present sufficient evidence to prove their counterclaims. Instead,

he argued that the Regents should be barred from bringing their counterclaims under

theories of collateral estoppel and judicial exhaustion. As such, his JMOL motion

was a belated attempt to initiate a long-overdue Rule 12(b)(6) motion to dismiss.

      3. Khoury's appeal of the taxing of costs rests entirely on his contention that

the district court should have granted his JMOL motion with respect to the Regents'



                                          4
counterclaims. Because we uphold the judgment on the counterclaims, we also

affirm the district court's taxing of costs.

             AFFIRMED.




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