                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                          FILED
                              FOR THE NINTH CIRCUIT                            OCT 21 2011

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

KEN RIDDLE,                                      No. 10-16184

                Plaintiff - Appellant,           D.C. No. 2:07-cv-01127-ECR-LRL

  v.
                                                 MEMORANDUM*
DAVID WASHINGTON; CITY OF LAS
VEGAS,

                Defendants - Appellees.


                    Appeal from the United States District Court
                               for Nevada, Las Vegas
                Edward C. Reed, Junior, Senior District Judge, Presiding

                       Argued and Submitted September 1, 2011
                              San Francisco, California

Before: WALLACE and FISHER, Circuit Judges, and MILLS, Senior District
Judge.**

       Riddle appeals from the district court’s summary judgment in favor of

Appellees Washington and the City of Las Vegas. We have jurisdiction under 28


            *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
          The Honorable Richard Mills, Senior District Judge for the Central
District of Illinois, sitting by designation.
U.S.C. § 1291. Applying de novo review, Metoyer v. Chassman, 504 F.3d 919,

930 (9th Cir. 2007), and construing the evidence in favor of Riddle as the

nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), we

reverse and remand.

      Riddle, a Caucasian, alleges that he was terminated because of his race in

violation of 42 U.S.C. § 1981, 42 U.S.C. § 1983 and Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. The analytic framework used in Title

VII cases also applies to Riddle’s purposeful discrimination claims under sections

1981 and 1983. Metoyer, 504 F.3d at 930. Title VII makes it unlawful for an

employer “to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s race

[or] color . . . .” 42 U.S.C. § 2000e-2(a)(1). This section prohibits discrimination

against Caucasians as well as minorities. Ricci v. DeStefano, 129 S. Ct. 2658, 2673

(2009).

      We apply the framework established in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). The parties do not contest the district court’s conclusion that

Riddle established a prima facie case for employment discrimination or the district

court’s conclusion that Appellees articulated a legitimate, nondiscriminatory

reason for Riddle’s termination. But, “a plaintiff may defeat a defendant’s motion


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for summary judgment by offering proof that the employer’s legitimate,

nondiscriminatory reason is actually a pretext for racial discrimination.” Cornwell

v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). Much of

Riddle’s evidence of pretext is speculative, hearsay or self-serving, but there is

enough admissible evidence that, construed most favorably to Riddle, is sufficient

to defeat Appellees’ motion for summary judgment. See Fed. R. Civ. P. 56(c)(4).

      A reasonable juror could view the written documentation of Riddle’s job

performance as inconsistent with Appellees’ proffered reason for Riddle’s

termination. Riddle’s employment file does not contain references to the violations

that purportedly caused Washington to lose all faith in Riddle. Moreover,

Washington wrote a favorable recommendation letter for Riddle in February 2006

only months before Riddle’s July termination. Washington wrote, among other

things, that Riddle “was once my immediate supervisor and we enjoyed an

excellent working relationship,” that Riddle “is a visionary in this service,” that

Riddle “has an excellent work record with our department” and that he is

“extremely professional.” Riddle received numerous merit increases in pay

between 2001 and June 2006. Riddle also received good performance reviews

from Washington in 2005 and 2006, which Riddle claims were not included in the

employment file produced by Appellees. See Akiona v. United States, 938 F.2d


                                           3
158, 161 (9th Cir. 1991) (“Generally, a trier of fact may draw an adverse inference

from the destruction of evidence relevant to a case”).

      In addition, based on Riddle’s assertions in his declaration, Appellees’

reasons for Riddle’s termination rest on disputed issues of material fact. Riddle

denies Washington’s assertion that Riddle missed a meeting called by Washington

in August 2001 because it slipped Riddle’s mind; instead, Riddle alleges that he

was out of town. Riddle denies that he ever disappeared from his job for long

periods or that Washington talked with him about it. Riddle admits that

Washington advised him to stop smoking in his office in 2004, but denies that

Washington had three discussions with him regarding smoking in his office

between 2002 and 2004.

      Other aspects of Riddle’s termination and replacement could buttress a

reasonable finding of pretext. According to Riddle and another fire department

employee, Washington repeatedly commented that “It’s not that I’m anti white,

I’m pro black.” See Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th

Cir. 1995) (comments favoring one group may support inference of discrimination

against another group). Riddle has presented some evidence that Washington

stated a preference for Gene Campbell, an African American, to replace

Washington as Fire Chief upon his retirement. Riddle was one of four Deputy Fire


                                          4
Chiefs, the position directly below Fire Chief. After working for the fire

department for 28 years and serving as Deputy Chief for 11 years, Riddle was

terminated without having an opportunity to refute the emailed complaint of his

smoking that led to his termination. See Fonseca v. Sysco Food Servs. of Ariz.,

Inc., 374 F.3d 840, 850 (9th Cir. 2004) (failure to conduct investigation may

support finding of pretext). Washington promoted Campbell to replace Riddle

although another employee viewed Campbell as knowing nothing about areas in

which he had previously been promoted. This evidence, combined with the written

documentation of Riddle’s job performance and the materially disputed aspects of

his performance, viewed in the light most favorable to Riddle, could provide a

sufficient basis for a reasonable juror to find that Appellees’ reasons for Riddle’s

termination are pretext.

      Because we reverse the summary judgment on Riddle’s federal claims, we

also remand for the district court to reconsider whether it should exercise

supplemental jurisdiction over Riddle’s state law claims for wrongful termination

and defamation. See Fang v. U.S., 140 F.3d 1238, 1244 (9th Cir. 1998).

      REVERSED and REMANDED.




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