                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ARNOLD CHEW,                                    No.    16-15437

                Plaintiff-Appellant,            D.C. No. 3:13-cv-05286-MEJ

 v.
                                                MEMORANDUM*
CITY AND COUNTY OF SAN
FRANCISCO; LAGUNA HONDA
HOSPITAL AND REHABILITATION
CENTER,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Northern District of California
                  Maria-Elena James, Magistrate Judge, Presiding

                     Argued and Submitted October 16, 2017
                           San Francisco, California

Before: HAWKINS and W. FLETCHER, Circuit Judges, and KRONSTADT, **
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable John A. Kronstadt, United States District Judge for the
Central District of California, sitting by designation.
      Plaintiff-Appellant Arnold Chew appeals the decision by the district court1

granting the motion for summary judgment brought by Defendants-Appellees City

and County of San Francisco (collectively, the “City”) and Laguna Honda Hospital

(“LHH”). Plaintiff also appeals from related evidentiary rulings and from the

award of costs.2 The underlying claims arise from Plaintiff’s employment with

LHH, which is owned by the City. Plaintiff alleged discrimination and retaliation

based on his association with an African-American colleague in violation of Title

VII of the Civil Rights Act, 42 U.S.C. §§ 2000 et seq., 42 U.S.C. § 1981, and the

California Fair Employment and Housing Act, Cal. Gov’t Code § 12940

(“FEHA”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo

a decision granting summary judgment. Devereaux v. Abbey, 263 F.3d 1070, 1074

(9th Cir. 2001) (en banc) (citing Weiner v. San Diego Cty., 210 F.3d 1025, 1028

(9th Cir. 2000)). We affirm.



      1
       With the express consent of Plaintiff and without objection by Defendants,
Magistrate Judge James presided in this action.
      2
        Plaintiff also filed two requests for judicial notice in connection with this
appeal. Both are denied. Certain documents for which judicial notice has been
requested are already included in the record. Judicial notice as to those documents
is denied as moot. See G.M. ex rel. Marchese v. Dry Creek Joint Elementary Sch.
Dist., 595 F. App’x 698, 700 (9th Cir. 2014). Judicial notice of the other
documents is inappropriate because it would supplement the record with
documents that Plaintiff could have presented, but failed to present to the district
court. See Ctr. for Bio-ethical Reform, Inc. v. City and Cty. of Honolulu, 455 F.3d
910, 918 n.3 (9th Cir. 2006).

                                          2                                    16-15437
      Under Title VII and FEHA, a plaintiff must exhaust all administrative

remedies before filing a civil action in which employment discrimination or

retaliation claims are alleged. See, e.g., Paige v. California, 102 F.3d 1035, 1041

(9th Cir. 1996); Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir. 2001)

(citing Yurick v. Superior Court, 257 Cal. Rptr. 665, 667 (Cal. Ct. App. 1989)).

Consequently, the exhaustion requirement limits the scope of those claims that can

be advanced in a judicial proceeding that is filed after the completion of the

administrative process of the Equal Employment Opportunity Commission

(“EEOC”) or the California Department of Fair Employment and Housing

(“DFEH”). See Sommatino v. United States, 255 F.3d 704, 707–09 (9th Cir. 2001).

“The scope of the written administrative charge defines the permissible scope of

the subsequent civil action . . . Allegations in the civil complaint that fall outside of

the scope of the administrative charge are barred for failure to exhaust.” Rodriguez,

265 F.3d at 897 (citations omitted). Therefore, a civil action may not include

different alleged acts of discrimination or retaliation “unless the new claims are

like or reasonably related to the allegations contained in the EEOC charge.” Green

v. Los Angeles Cty. Superintendent of Schs., 883 F.2d 1472, 1475–76 (9th Cir.

1989) (internal citations and quotation marks omitted).

      The complaint that was filed in this action alleged associational

discrimination and retaliation based on Plaintiff’s relationship with a colleague,


                                           3                                     16-15437
Leonard Collins, who is an African-American. The district court correctly

concluded that this alleged discrimination and retaliation was not “reasonably

related” to the administrative charges that Plaintiff presented to the EEOC and the

DFEH.

      On January 18, 2013, Plaintiff filed a charge with the DFEH alleging that he

experienced discrimination, harassment and retaliation. Plaintiff stated “Other” as

the basis for these claims. The charge included detailed allegations, but made no

mention of Collins or associational discrimination. On February 8, 2013, Plaintiff

withdrew that charge. On April 22, 2013, Plaintiff filed a new charge with the

DFEH, which he also filed with the EEOC. In its detailed allegations, it identified

only age and disability as the bases for the alleged discrimination. Thus, it did not

identify race discrimination or associational discrimination, and made no reference

to Plaintiff’s relationship with Collins. 3


      3
         The “rule of liberal construction,” which requires courts to interpret the
scope of an administrative charge “with utmost liberality” for the purposes of
exhaustion analysis “does not suggest that a plaintiff sufficiently exhausts his
administrative remedies under Title VII by merely mentioning the word
‘discrimination’ in [the] EEOC administrative charge.” Freeman v. Oakland
Unified Sch. Dist., 291 F.3d 632, 636–37 (9th Cir. 2002). That on May 7, 2013,
Plaintiff’s counsel sent a letter to the DFEH referring to discrimination based on
Plaintiff’s association with Collins does not warrant a different result. No amended
complaint was filed with either the DFEH or the EEOC. Further, because this
argument as to the scope of the administrative claims was not made to the district
court, it was waived. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]n
appellate court will not consider issues not properly raised before the district
court.”).

                                              4                                16-15437
      The purpose of administrative exhaustion is to provide an administrative

agency with sufficient information so that it can conduct an appropriate

investigation about the alleged discrimination. See Freeman 291 F.3d at 636.

Administrative proceedings may result if warranted by the investigation. Such

proceedings may make it unnecessary for a plaintiff to bring a civil action. A

failure to comply with the exhaustion requirements undermines these important

principles. Because Plaintiff failed adequately to disclose to the EEOC and the

DFEH the claims advanced here, he failed to exhaust his administrative remedies.

This barred his Title VII and FEHA claims, and warranted summary judgment for

Defendants.

      Even if Plaintiff had exhausted his administrative remedies, the result would

be the same because Plaintiff’s claims of discrimination and retaliation fail on the

merits. The claims here under Title VII, 42 U.S.C. §§ 2000 et seq., and 42 U.S.C. §

1981 are governed by the three-step burden-shifting process established by

McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Metoyer v.

Chassman, 504 F.3d 919, 930–31 (9th Cir. 2007). California has adopted the

McDonnell Douglas test for FEHA claims. See Moore v. Regents of the Univ. of

Calif., 206 Cal. Rptr. 3d 841, 856 (Cal. Ct. App. 2016) (citing Guz v. Bechtel Nat’l,

Inc., 8 P.3d 1089, 1113–14 (Cal. 2000)).

      Under that framework, a plaintiff must first present sufficient evidence to


                                           5                                  16-15437
establish a prima facie basis for the claimed discrimination or retaliation. See

Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105–06 (9th Cir. 2008). If the

plaintiff meets that burden, the defendant is then required to present evidence that

is sufficient to “articulate a legitimate, nondiscriminatory reason for its allegedly

discriminatory conduct.” Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 640 (9th

Cir. 2003). If it does so, the plaintiff must then present evidence that shows that

“the employer’s proffered nondiscriminatory reason is merely a pretext for

discrimination.” Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037

(9th Cir. 2005) (citing Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir.

2000)).

      Plaintiff presented sufficient evidence to establish a prima facie case of

discrimination and retaliation as required by the first step in the McDonnell

Douglas process. Plaintiff has been employed at LHH since 1998. Although

substantial performance issues have arisen during his tenure, he has made a

sufficient prima facie showing that he is qualified for his position. It is undisputed

that Plaintiff had an association with Collins. It is also undisputed that in October

2011, he was instructed to limit the time he was spending in assisting Collins, and

instead to devote his time to improving his own performance. Finally, Plaintiff

offered sufficient evidence to support a prima facie showing of adverse

employment actions. See Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).


                                           6                                    16-15437
This included negative performance reviews, suspensions from work and the

adoption in October 2012 of a process used by LHH that it calls a “Development

Plan.” Its claimed purpose was to monitor and improve Plaintiff’s performance.

Based on the foregoing, Plaintiff met the “minimal” evidentiary standard to

establish a prima facie case under McDonnell Douglas. Chuang v. Univ. of Cal.

Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000) (quoting Wallis v. J.R.

Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)).

      In response, Defendants provided sufficient evidence of nondiscriminatory

justifications for the allegedly adverse employment actions. As early as 2000,

issues arose regarding Plaintiff’s job performance, and additional negative reviews

were communicated to Plaintiff in February 2009 and May 2010. Most of this

negative performance history predated the challenged conduct, which allegedly

started in the fall of 2011. Indeed, several of these performance reviews were

communicated prior to July 2010, when Collins was first employed by LHH.

Plaintiff was also suspended from work several times due to specific issues relating

to his job performance. Defendant also relies on the need for the Development Plan

as further evidence of the shortcomings of Plaintiff’s performance. Collectively,

this evidence is sufficient to meet the standard for showing a nondiscriminatory

reason for the challenged conduct.

      Turning to the final step in the process, Plaintiff failed to present evidence


                                          7                                    16-15437
sufficient to raise a triable issue of material fact as to whether these

nondiscriminatory justifications were pretextual. See Dominguez-Curry, 424 F.3d

at 1037–38. Direct evidence of pretext is “evidence which, if believed, proves the

fact [of discriminatory animus] without inference of presumption.” Godwin v. Hunt

Wesson, Inc. 150 F.3d 1217, 1221 (9th Cir. 1998) (alterations in original) (quoting

Davis v. Chevron, U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994). It “typically

consists of clearly sexist, racist, or similarly discriminatory statements or actions

by the employer.” Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th

Cir. 2005) (citations omitted). Plaintiff presented no direct evidence of

discriminatory animus that allegedly arose from his relationship with Collins.4

      Absent sufficient direct evidence of pretext, Plaintiff must offer “specific

and substantial” indirect evidence of pretext. EEOC v. Boeing Co., 577 F.3d 1044,

1049 (9th Cir. 2009) (citing Coghlan, 413 F.3d at 1095). The evidence offered by

Plaintiff was not sufficient to meet this heightened evidentiary burden. Plaintiff

argues that performance issues as to his work did not start until he began

associating with Collins. As noted, Collins was first employed by LHH in July



      4
        As noted, Plaintiff presented evidence that in October 2011, a supervisor
told him to stop assisting Collins at work, and instead to devote his time to
improving his own job performance. He also offered evidence that his supervisors
scrutinized his work more closely than that of his co-workers. This evidence is not
sufficient to show a triable issue as to discriminatory animus. Godwin, 150 F.3d at
1221.

                                           8                                    16-15437
2010. However, Plaintiff received negative performance appraisals as early as

2000, and received several others prior to when Collins was first employed by

LHH. Therefore, the evidence presented by Plaintiff did not constitute “specific

and substantial” indirect evidence of pretext, sufficient to support the claim that

discriminatory animus “more than likely motivated” Plaintiff’s supervisors, or that

the “proffered explanation is unworthy of credence.” Anthoine v. N. Cent. Ctys.

Consortium, 605 F.3d 740, 753 (9th Cir. 2010) (internal citations and quotation

marks omitted).

      Plaintiff also failed to establish a triable issue as to municipal liability under

Monell v. Department of Social Services, 436 U.S. 658 (1978). There was no

evidence that either the alleged discrimination or retaliation was the result of an

official policy, a long-standing practice or custom, or the decision of a “final

policymaker.” See Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003).

      The evidentiary rulings by the district court as well as its award of costs to

Defendants are reviewed under an abuse of discretion standard. See Draper v.

Rosario, 836 F.3d 1072, 1087 (9th Cir. 2016) (citing Save Our Valley v. Sound

Transit, 533 F.3d 932, 945 n.12 (9th Cir. 2003); Tritchler v. Cty. of Lake, 358 F.3d

1150, 1155 (9th Cir. 2004) (citing Freeman v. Allstate Life Ins. Co., 253 F.3d 533,

536 (9th Cir. 2001)). Because there is no showing that any of the evidentiary

rulings was in error, there was no abuse of discretion. The award of $4,399.59 in


                                           9                                       16-15437
costs was based on the amounts incurred by Defendants in serving certain

documents and subpoenas as well as those incurred for certain transcripts. These

amounts were reasonable and permitted by Fed. R. Civ. P. 54(d)(1). Further,

Plaintiff did not submit sufficient evidence to show that this award would impose

undue financial hardship. Therefore, the district court did not abuse its discretion in

awarding these costs.

      AFFIRMED.




                                          10                                   16-15437
