                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 28 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CARMEN BLAIR,                                    No.   15-55748

              Plaintiff-Appellant,               D.C. No.
                                                 2:13-cv-07478-CAS-FFM
 v.

DAVID SHULKIN, Secretary, Department             MEMORANDUM*
of Veterans Affairs,

              Defendant-Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                       Argued and Submitted March 6, 2017
                              Pasadena, California

Before: REINHARDT and NGUYEN, Circuit Judges, and EZRA,** District Judge.

      Carmen Blair appeals the district court’s order granting summary judgment

in favor of the Department of Veterans Affairs (“VA”). Blair, a Protestant, filed an

action against the VA alleging that the Department violated Title VII by firing her

from her position as a chaplain on account of her Christian religion.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Under the McDonnell Douglas framework, a plaintiff must first establish a

prima facie case of discrimination, at which point the burden then shifts to the

employer to articulate a legitimate, non-discriminatory reason for the challenged

action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973) If

the employer meets this burden, the plaintiff must then show that the defendant's

stated reason is pretext for unlawful discrimination. Id. at 804. In cases where the

same actor was responsible for both a plaintiff's hiring and the subsequent adverse

employment action, we apply the “same-actor inference,” and require that the

plaintiff make an “extraordinarily strong showing of discrimination.” Coghlan v.

Am. Seafoods Co. LLC, 413 F.3d 1090, 1097 (9th Cir. 2005).

      Here, Blair introduced evidence that certain of her colleagues made

statements alleging that she was unable to minister effectively to patients of other

faiths. For the purposes of summary judgment, we follow the district court in

assuming that Blair has thus demonstrated a prima facie case of religious

discrimination.

      The VA has in turn proffered legitimate, nondiscriminatory reasons for

dismissing Blair, namely that she failed to integrate with the other members of the

hospice unit’s interdisciplinary team, and that she did not maintain adequate patient

charts. The burden therefore shifts to Blair to show that there are genuine issues of


                                          2
material fact as to whether the explanations offered by the VA are in fact

pretextual. See, e.g., Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir.

2010).

      A plaintiff may demonstrate that a defendant’s nondiscriminatory rationale

is pretextual “either directly by persuading the court that a discriminatory reason

more likely motivated the employer or indirectly by showing that the employer's

proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 256 (1981). In this case, Blair additionally must overcome

the “same-actor inference,” as she alleges that Chaplain Vasquez and Dr.

Rosenfeld were responsible for both her hiring and her dismissal from the hospice

unit within a period of three months. Moreover, Chaplain Vasquez and Dr.

Rosenfeld knew that Blair was a Christian when they hired her for the position of a

“Protestant chaplain.” The very basis upon which Blair claims she was

discriminated against—her Christian faith—was a prerequisite for her initial

employment.

         Here, Blair is unable to offer either direct or circumstantial evidence

sufficient to defeat the same-actor inference and to raise a genuine issue of material

fact as to whether the VA’s proffered nondiscriminatory rationales are pretextual.

Although we recognize that Blair has introduced evidence that certain patients


                                            3
regarded her as a competent chaplain, this showing does not rebut the VA’s

assertion that it believed that Blair was unable to integrate into the hospice unit

team. To the extent that Blair claims that the VA impermissibly created a “secular”

work environment, she is unable to show that the Department acted out of animus

toward her religion.1 In light of Blair’s failure to present evidence of pretext, we

conclude that the district court properly granted summary judgment for the VA on

Blair’s claim of religious discrimination.

      The district court decision is AFFIRMED.




      1
         The Seventh Circuit has held that the VA must “walk a fine constitutional
line” in providing spiritual care for its patients, and thus may institute an
“ecumenical approach to its chaplaincy.” Baz v. Walters, 782 F.2d 701, 709 (7th
Cir. 1986). As we do here, the court in Baz rejected the plaintiff’s Title VII claim
alleging religious discrimination, concluding that he was fired not due to his
religious beliefs, but because his “view of his function as a Veteran’s
Administration chaplain . . . was decidedly different from the demands of his
superiors.” Id. at 705.
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