                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 18 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



FREDERICK SCHIFF,                                No. 11-17291

              Plaintiff - Appellant,             D.C. No. 4:08-cv-04627-PJH

  v.
                                                 MEMORANDUM *
THE CITY AND COUNTY OF SAN
FRANCISCO; SAN FRANCISCO
POLICE DEPARTMENT; HEATHER
FONG, Individually and in her official
capacity as Chief of the San Francisco
Police Darthment,

              Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                        Argued and Submitted May 16, 2013
                             San Francisco, California

Before: McKEOWN and WATFORD, Circuit Judges, and ZILLY, Senior District
Judge.**


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Thomas S. Zilly, Senior District Judge for the U.S.
District Court for the Western District of Washington, sitting by designation.
      Frederick Schiff appeals from the district court’s order granting a motion for

summary judgment by the City and County of San Francisco (the “City”) and its

former Chief of Police Heather Fong, and denying Schiff’s motion for partial

summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291. After de

novo review of the evidence in the light most favorable to the non-moving party,

we affirm.

      Schiff, an officer in the San Francisco Police Department (“SFPD”), alleges

that he was subject to adverse employment actions because the City discriminated

against him on the basis of race and retaliated against him for his prior race

discrimination complaints and lawsuit, in violation of 42 U.S.C. §§ 1981 and 1983.

Although the settlement of Schiff’s prior lawsuit released the City from liability for

the adoption of “banding” in making promotions from the 2005 lieutenants list, we

agree with Schiff that it did not prevent him from relying on the City’s use of

banding as evidence here. See RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045,

1062 (9th Cir. 2002).

      Assuming that Schiff established a prima facie case of discrimination under

the burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-04 (1973), his claims fail because the City introduced evidence

demonstrating that Schiff was not promoted for legitimate, non-discriminatory


                                           2
reasons, and Schiff has failed to introduce evidence that would raise a genuine

question of material fact as to whether the City’s proffered reasons were pretextual.

See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062-64 (9th Cir. 2002).

Among the considerations in determining promotions was disciplinary history.

Schiff had several disciplinary charges pending against him at the time of the

October 2008 promotions, including one for neglect of duty that was sustained

after two appeals. Chief Fong also stated additional specific and well-documented

reasons concerning Schiff’s conduct and judgment.

      Once the City has provided non-discriminatory reasons for the adverse

action, the “the presumption of discrimination ‘drops out of the picture,’” and we

determine based on the evidence in the record whether a reasonable jury could

conclude that defendants discriminated against Schiff on the basis of race. See

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

(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).

Schiff was unable to identify a single officer who was promoted who had recent

disciplinary charges. It is not enough for Schiff to merely point out that a non-

white candidate ranked below him was promoted and he was not.

      With regard to retaliation, Schiff has failed to introduce evidence

establishing a causal link between the protected activity and the adverse action.


                                          3
Manatt v. Bank of America, 339 F.3d 792, 800-04 (9th Cir. 2003). “[I]n the light

of the timing and the surrounding circumstances,” the district court did not err in

determining that the five years between the filing of Schiff’s lawsuit in 2003 and

the alleged retaliation in 2008 undermined the required causal link between the

protected activity and the adverse employment action. Anthoine v. N. Cent. Cntys.

Consortium, 605 F.3d 740, 751 (9th Cir. 2010) (quoting Coszalter v. City of Salem,

320 F.3d 968, 977-78 (9th Cir. 2003)) (internal quotation marks omitted).

      Even assuming Schiff established a prima facie case of retaliation, he bears

the burden of demonstrating that the City’s reasons were merely a pretext for a

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

With regard to the failure to promote, Schiff failed to introduce evidence sufficient

to show pretext; in fact, Chief Fong knowingly promoted three other individuals

involved in the same lawsuit during the relevant time period. With regard to the

stay-away order, the consistent statements and documentary evidence supporting

Cashman’s justification are not mutually exclusive of Chief Fong’s explanation.

The fact that there were two legitimate justifications for the stay-away order does

not render either one unworthy of credence. See Aragon v. Republic Silver State

Disposal Inc., 292 F.3d 654, 661 (9th Cir. 2002) (holding that “[w]e do not infer




                                          4
pretext from the simple fact that [the defendant] had two different, although

consistent, reasons” for the adverse employment action).

      Although the evidentiary burdens shift back and forth under the McDonnell

Douglas framework, the “plaintiff retains the burden of persuasion.” Texas Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Schiff has not introduced

evidence sufficient for a jury to be able conclude either that “a discriminatory

reason more likely motivated the employer or . . . that the employer’s proffered

explanation is unworthy of credence.” Chuang v. University of California Davis,

225 F.3d 1115, 1124 (9th Cir. 2000) (internal quotation marks and citation

omitted). Accordingly, Schiff has failed to “demonstrate that the proffered reason

was not the true reason for the employment decision” and has not carried his

burden. Burdine, 450 U.S. at 256.

      Even if there had been a discriminatory or retaliatory action, the City would

not be liable because Chief Fong was not a final policymaker for the purposes of

hiring and promotions. See Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232,

1253 (9th Cir. 2010) (noting that “‘[t]o hold cities liable under section 1983

whenever policymakers fail to overrule the unconstitutional discretionary acts of

subordinates would simply smuggle respondeat superior liability into section 1983

law’” (quoting Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992) (per


                                          5
curiam))). Nor has Schiff identified any unlawful City policy. See id. at 1249. We

have considered the documents Schiff submitted with his motion for judicial

notice. The motion is DENIED as unnecessary. See Von Saher v. Norton Simon

Museum of Art, 592 F.3d 954, 960 (9th Cir. 2010).

      AFFIRMED.




                                        6
                                                                                  FILED
Schiff v. City and County of San Francisco, No. 11-17291                           JUN 18 2013

                                                                              MOLLY C. DWYER, CLERK
ZILLY, Senior District Judge, concurring in part and dissenting in part: U .S. C O U R T OF APPE ALS

       I agree that Chief Fong was not a final policymaker for purposes of hiring

and promotion. As a result, the City is not liable on Schiff’s claims. I also agree

that, notwithstanding the settlement of Schiff’s prior lawsuit, Schiff was not

precluded from relying on the City’s use of banding as evidence in this case.

       Schiff alleges he was discriminated against based on race in connection with

his efforts to be promoted to Lieutenant in October 2008. The majority correctly

assumes Schiff established a prima facie case of discrimination but concludes he

failed to introduce evidence that would raise a genuine issue of fact as to whether

the City’s proffered reasons for not promoting him were pretextual. I disagree and

would reverse the trial court’s decision to grant summary judgment against Schiff

on his discrimination and retaliation claims. When this Court reviews a district

court’s order granting summary judgment, the Court must view the record in the

light most favorable to the non-moving party (Schiff) and draw all reasonable

inferences in favor of that party. Under this well-established standard, the district

court erred in granting summary judgment in favor of the defendants.

       At the time this action was filed in October 2008, Schiff was a Sergeant in

the San Francisco Police Department (“SFPD”). Schiff is white. Schiff and 10

other officers previously sued the City in 2003, alleging racial discrimination in
appointments made from the 1999 Lieutenant-eligible list. Schiff’s current action

involves the failure to promote him in October 2008 based on the 2005 Lieutenant-

eligible list. Based on his examination score, Schiff was ranked 29 on a list of 152

individuals on the 2005 Lieutenant-eligible list.

      Under the City’s practice of “banding,” the first 11 candidates on the 2005

Lieutenant-eligible list were promoted, and thereafter a sliding band was used to

fill the remaining slots down to the individual ranked 66. In the “banding”

process, secondary criteria were also considered, including assignments, training,

education, special qualifications, commendations, awards, bilingual certification,

and discipline history. Sergeant Gittens, a minority officer ranked 66, was

promoted to Lieutenant over Schiff. Schiff had a college degree, had been

awarded medals of valor, speaks a foreign language, had been a sergeant for 16

years, and had previously been an “acting” Lieutenant. In contrast, Gittens had

eight years at the rank of sergeant, and did not have any of Schiff’s other

qualifications.

      The practice of “banding” in making the October 2008 promotions was itself

evidence of discrimination. It is undisputed that “banding” is an SFPD practice

used to boost the number of minority candidates eligible for promotion over white

candidates. As the majority and I agree, this evidence of “banding” should have

been considered by the district court in ruling on the motion for summary
judgment, despite the settlement of Schiff’s prior lawsuit. The majority and I part

ways concerning whether this evidence created a genuine issue of material fact as

to pretext. I am persuaded that this evidence sufficiently demonstrated the City

favored minority candidates in the promotional process so as to make summary

judgment inappropriate. Moreover, Schiff’s superior qualifications, standing

alone, were enough to establish a question of fact relating to pretext.

      The City contends Schiff was not promoted because disciplinary charges

were pending against him at the time of the October 2008 promotions, including

one for neglect of duty. The City’s reliance on these events, which occurred in late

September 2008, immediately before the October 2008 selections, is highly

suspect. Schiff indicates that, after he had been an SFPD officer for more than

20 years without any disciplinary problems, Captain Barrett filed five disciplinary

violations against him on October 1, 2008, the day before Chief Fong announced

additional promotions to Lieutenant, and two days before the 2005 Lieutenant-

eligible list expired. Chief Fong did not promote Schiff allegedly because of the

five violations filed by Captain Barrett, but Chief Fong admitted that, with respect

to other candidates, she looked only at internal affairs complaints that had been

sustained. At the time Schiff was passed over for promotion, Captain Barrett’s

charges against Schiff were merely allegations, and four of the five alleged

violations were later found to be unsubstantiated. Schiff contends that the
allegations against him were trumped up by Captain Barrett to create a disciplinary

infraction that would block his promotion. Schiff has made a sufficient showing to

survive summary judgment, presenting factual questions as to whether the

disciplinary charges were merely pretext.

      I also disagree with the majority’s decision to affirm the dismissal of the

retaliation claim. Schiff has had a long history of complaints against the SFPD.

Schiff’s prior litigation (Schiff I), initiated in 2003, involved the same “banding”

policy. The majority concludes, I believe incorrectly, that the district court did not

err in determining that the five years between the filing of Schiff I and the failure

to promote Schiff to Lieutenant, allegedly as a result of retaliation, destroyed the

required causal link between the protected activity and the adverse employment

action. October 2008 was Chief Fong’s first opportunity after Schiff I to decide

whether to promote Schiff. This Circuit has cautioned against engaging in “a

mechanical inquiry into the amount of time between the [protected activity] and the

alleged retaliatory action” and has rejected the application of any “bright-line rule

providing that a certain period of time is per se too long to support an inference of

retaliation.” Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 751 (9th

Cir. 2010). The circumstances of this case do not support the district court’s

reliance on the passage of time, particularly in light of the fact that none of the five

other Schiff I plaintiffs on the 2005 Lieutenant-eligible list were promoted by
Chief Fong in 2008. Summary judgment on the retaliation claim should not have

been granted.

      For the foregoing reasons, I must respectfully dissent.
