                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 05 2015

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



                            FOR THE NINTH CIRCUIT


RAJESH GAUR,                                     No. 12-57089

              Plaintiff - Appellant,             D.C. No. 2:11-cv-00651-SJO-RZ

  v.
                                                 MEMORANDUM*
CITY OF HOPE; BECKMAN
RESEARCH INSTITUTE OF THE CITY
OF HOPE,

              Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                     Argued and Submitted December 9, 2014
                              Pasadena, California

Before: WARDLAW and BERZON, Circuit Judges, and SMITH, District Judge.**

       Plaintiff Rajesh Gaur (“Dr. Gaur”) appeals from a judgment entered on a


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable William E. Smith, District Judge for the U.S. District
Court the District of Rhode Island, sitting by designation.
jury verdict in favor of his former employer, Defendant Beckham Research

Institute of the City of Hope (“BRI”), on his Title VII claim. We affirm.

      The district court excluded evidence relating to promotion decisions made

by Dr. Arthur Riggs, who served as BRI’s Director before Dr. Richard Jove, the

ultimate decision-maker with respect to Dr. Gaur’s denial of promotion and

discharge. We review a district court’s evidentiary rulings for abuse of discretion.

See Obrey v. Johnson, 400 F.3d 691, 694 (9th Cir. 2005).

      Dr. Gaur acknowledges that, after Dr. Jove became the Director of BRI, only

Dr. Jove had the authority to decide whether Dr. Gaur would be terminated or

promoted. Dr. Gaur contends, however, that past evidence of Dr. Riggs’s allegedly

“discriminatory decisions” with respect to Asian and white professors is relevant to

establishing a pattern of discrimination that continued under Dr. Jove. In support

of this contention, Dr. Gaur relies primarily on the so-called “cat’s paw” theory of

liability. See Staub v. Proctor Hosp., 131 S. Ct. 1186, 1190 (2011).

      The district court did not abuse its discretion in excluding the evidence. Dr.

Gaur did not establish that any of Dr. Riggs’s actions was the “proximate cause of

the ultimate employment action.” Id. at 1194. Whether Dr. Riggs had made

discriminatory promotion decisions therefore had no pertinence in determining

why Dr. Gaur was not promoted.


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      Dr. Riggs recommended in a December 2007 email to Dr. Jove that he defer

Dr. Gaur’s promotion decision for one year. But there is no evidence suggesting

that Dr. Riggs played a role in the two later, determinative, employment decisions

made by Dr. Jove — the further extension in March 2008 and the denial of

promotion in September 2009. Likewise, the contention that Dr. Riggs’s alleged

error about Dr. Gaur’s grant funding history, which was communicated to Dr. Jove

in September 2007, put Dr. Gaur on a “deferral track” is unsupported by the

record. The error was corrected, so Dr. Jove was not under a misapprehension

when he made his decisions.

      Moreover, the evidence at trial indicated that, after becoming Director of

BRI, Dr. Jove put a “hold” on all promotions so he could develop “consistent and

clear policies for promotion” that specifically emphasized the need for professors

to obtain “substantial” extramural grant funding to support their research. Dr.

Gaur conceded that he had no active grant support when his promotion was

considered in September 2007, nor when he was discharged in September 2009.

Likewise, two of the three white co-workers on which Dr. Gaur focused at trial —

Dr. Kevin Ferreri and Dr. Chauncey Bowers — were also denied promotion by Dr.

Jove because they had failed to obtain qualifying grants.

      Furthermore, Dr. Gaur did not show that any of the professors who were


                                          3
promoted by Dr. Jove had failed to obtain extramural grant funding that

“conformed” to BRI’s promotion policies and procedures. Dr. Gaur argues that the

circumstances under which one professor — Dr. Karen Aboody — received her

grant funding prove that BRI treated him unfavorably on account of his race and

national origin. But the district court did permit Dr. Gaur to offer “evidence

regarding the disparate treatment extended to Dr. Aboody” to the jury, and he did

so, at length, at trial.

       In short, the district court’s exclusion of evidence concerning promotion

decisions made by a prior Director was not an abuse of discretion.

       AFFIRMED.




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