                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              FEB 22 2012

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

MICHAEL CRUDDER,                                 No. 11-15164

              Plaintiff - Appellant,             D.C. No. 2:09-cv-00435-HRH

  v.
                                                 MEMORANDUM*
PEORIA UNIFIED SCHOOL DISTRICT
NO. 11; PEORIA UNIFIED SCHOOL
DISTRICT NO. 11, Governing Board;
DENTON SANTARELLI, Ed. D., District
Superintendent; UNKNOWN
SANTARELLI, Named as Jane Doe
Santarelli - His Wife; DENNIS
WILLIAMS, Director of Human
Resources; MICHELLE HAEUSSLER;
UNKNOWN HAEUSSLER, Named as
John Doe Haeussler - her Husband;
UNKNOWN WILLIAMS,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                H. Russel Holland, Senior District Judge, Presiding

                     Argued and Submitted February 16, 2012
                            San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GRABER, BERZON, and TALLMAN, Circuit Judges.

      Appellant Michael Crudder appeals the district court’s adverse summary

judgment on his employment discrimination claims under Title VII of the Civil

Rights Act of 1964 and 42 U.S.C. §§ 1981 and 1983, in favor of Crudder’s

employer, appellee Peoria Unified School District No. 11 (“the district”). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Crudder argues that the district’s failure to promote him to principal while it

investigated sexual harassment claims against him constitutes disparate treatment

under Title VII and § 1981. The analysis is the same for both. See Fonseca v.

Sysco Food Srvs. of Ariz., Inc., 374 F.3d 840, 850 (9th Cir. 2004). Title VII

disparate treatment claims are analyzed under the framework set out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Hawn v. Exec. Jet Mgmt., Inc.,

615 F.3d 1151, 1155 (9th Cir. 2010) (explaining the application of the McDonnell

Douglas test). To succeed on a Title VII claim under McDonnell Douglas, the

plaintiff must first establish a prima facie case of discrimination. See Noyes v.

Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007). If the plaintiff states a prima

facie case, the burden shifts to the employer to articulate a “legitimate, non-

discriminatory reason for the challenged action.” Chuang v. Univ. of Cal. Davis,

Bd. of Trs., 225 F.3d 1115, 1123–24 (9th Cir. 2000). If the employer meets this


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burden, the plaintiff must then show a triable issue of material fact as to whether

the defendant’s stated reason is “mere pretext for unlawful discrimination.” Hawn,

615 F.3d at 1155. This burden is difficult to meet in cases where the same actor

was responsible for both a plaintiff’s promotion and subsequent adverse

employment action. See Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270–71

(9th Cir. 1996); see also Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1097

(9th Cir. 2005) (requiring plaintiff to make an “extraordinarily strong showing of

discrimination” to overcome the same-actor inference).

      Assuming that Crudder states a prima facie case of discrimination, as the

parties seem to concede, the district still prevails on its motion for summary

judgment because it had a legitimate, non-discriminatory reason for delaying

Crudder’s promotion to principal. The district maintains that it had a duty to

investigate sexual harassment claims raised against Crudder after he was

recommended for the principal position. Crudder has produced no evidence to

dispute the district’s stated belief that the investigation was necessary, see

Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002), and he

has not produced enough evidence to defeat the same-actor inference.

      To show pretext, Crudder argues that the district’s actual investigation was

not conducted within five working days in accordance with district policy. But the


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policy actually states that an investigation is to be completed within five working

days “when possible.” Given that the issue arose over a holiday break period and

many individuals had to be interviewed, the investigation was completed

expeditiously. No policy was violated. Further, even if this allegation is true, it

would still fail to show that the district’s investigation was pretext for racial

discrimination, especially in a case raising the same-actor inference.

      As an alternative theory of recovery for his disparate treatment claim,

Crudder argues that another employee used Santarelli as a “cat’s paw” for her

racial animus toward Crudder. Assuming that it applies, this theory also fails. The

record shows only that Haeussler reported the allegations to Santarelli and other

administrators. Although she provided names of colleagues whom she believed

might share her views of Crudder, she had nothing else to do with the fact-finding

portion of the investigation. See Poland v. Chertoff, 494 F.3d 1174, 1183 (9th Cir.

2007) (“[I]f an adverse employment action is the consequence of an entirely

independent investigation by an employer, the animus of the retaliating employee

is not imputed to the employer.”). Thus, the district court properly granted

summary judgment to the district on Crudder’s disparate treatment claims.

      The district court also properly granted summary judgment dismissing

Crudder’s retaliation claims. To state a prima facie case for retaliation, a plaintiff


                                           4
must demonstrate: (1) that he engaged in a protected activity; (2) that he was

subject to an adverse employment action; and (3) a causal link between the

protected activity and the adverse employment action. See Nilsson v. City of Mesa,

503 F.3d 947, 953–54 (9th Cir. 2007). If the plaintiff makes out a prima facie case,

the burden shifts to the employer to articulate a legitimate, non-retaliatory reason

for its actions. Id. at 954. The plaintiff must then produce evidence that the

employer’s reason was a pretext. Id.

      First, the district court properly concluded that the district’s one-week delay

in approving Crudder’s promotion in May 2008, as well as the district’s failure to

publish a press release announcing Crudder’s promotion, were not “adverse

employment actions.” See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761

(1998) (“A tangible employment action constitutes a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.”). Second, we hold that the district had a legitimate, non-discriminatory

reason for imposing the policy on Crudder. On this record, Crudder was the only

administrator promoted despite a record of complaints from female subordinates.

Warning Crudder that further complaints against him would not be tolerated, even

though some prior complaints had not been sustained, was a legitimate action by


                                           5
the district for a newly promoted administrator. Crudder has produced no evidence

that the district’s legitimate reason was a pretext for a retaliatory motive. See

Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 753 n.5 (9th Cir.

2001) (“Mere opinions and beliefs that [the employer’s] actions were retaliatory,

based on no specific or substantial evidence, are not enough to create a genuine

issue of material fact on the issue of pretext.”).

      Finally, Crudder's § 1983 claim fails for the same reasons we explained

above. See Keyser, 265 F.3d at 754 (noting that, although the burden-shifting

framework does not apply, “both disparate treatment and § 1983 claims require a

showing of intentional discrimination” so that “summary judgment decisions with

regard to § 1983 claims are remarkably similar to their Title VII counterparts”);

FDIC v. Henderson, 940 F.2d 465, 471–72 (9th Cir. 1991) (upholding summary

judgment for the employer on a § 1983 claim of intentional race discrimination

where there was no showing that the employer’s legitimate, non-discriminatory

reasons for its actions were pretextual).

      AFFIRMED.




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