                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 30 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TAMMY FRANKS,                                   No.    16-55671

                Plaintiff-Appellant,            D.C. No.
                                                8:15-cv-00108-JVS-DFM
 v.

CITY OF SANTA ANA,                              MEMORANDUM*

                Defendant-Appellee,

and

DOES, 1-10, inclusive,

                Defendant.

                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                     Argued and Submitted December 7, 2017
                              Pasadena, California

Before: WARDLAW and GOULD, Circuit Judges, and COLLINS,** Chief
District Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Raner C. Collins, Chief United States District Judge
for the District of Arizona, sitting by designation.
      Tammy Franks (“Franks”), an openly lesbian former commanding police

officer, appeals the district court’s grant of summary judgment to the City of Santa

Ana (“City”) on her claims for disparate treatment as a result of her gender and

sexual orientation under Title VII and California’s Fair Employment and Housing

Act (“FEHA”); hostile work environment under FEHA, and constructive discharge

under FEHA. The claims arose out of the City’s investigation of an anonymous

complaint against Franks when following the lodging of the complaint she was

immediately placed on administrative leave. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we review the district court’s grant of summary judgment de

novo. Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 891 (9th Cir. 2005). “We must

determine, viewing the evidence in the light most favorable to the nonmoving

party, whether there are any genuine issues of material fact and whether the district

court correctly applied the substantive law.” Id. (cleaned up); see also Fed. R. Civ.

P. 56(a). We may consider both direct and circumstantial evidence in

discrimination cases. Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)

(“Circumstantial evidence is not only sufficient, but may also be more certain,

satisfying and persuasive than direct evidence.”) (cleaned up).

      1.     Franks’ first and second causes of action under Title VII and the

FEHA allege the City treated her differently because of her gender and sexual

orientation by placing her on administrative leave pending the completion of the


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investigation. “We require very little evidence to survive summary judgment in a

discrimination case, because the ultimate question is one that can only be resolved

through a searching inquiry—one that is most appropriately conducted by the

factfinder, upon a full record.” Earl v. Nielsen Media Research, Inc., 658 F.3d

1108, 1112 (9th Cir. 2011) (cleaned up). The district court incorrectly found that

Franks failed to meet this low evidentiary burden.

      2.     While there are multiple factors courts consider when determining

whether there was discrimination, the district court reached only pretext, finding

that the City’s articulated reason for placing Franks on administrative leave was

not pretextual. A plaintiff can prove an employer’s articulated reason is pretextual

“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.” Texas Dep’t of Community Affairs v.

Burdine, 450 U.S. 248, 256 (1981); see also Chuang v. Univ. of Cal. Davis, Bd. of

Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000). Franks met this burden by

demonstrating that there was a deviation from police force procedure that worked

to her disadvantage. See Earl, 658 F.3d at 1117 (a plaintiff may raise a triable

issue of pretext through evidence that an employer’s deviation from established

policy or practice worked to her disadvantage). Deposition testimony confirms

there were numerous deviations from the City’s standard investigation practice,


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including, but not limited to, (1) no other employee accused of the type of conduct

alleged against Franks had ever been placed on administrative leave without a

preliminary investigation; (2) no other employee with these allegations had been

placed on administrative leave based on an anonymous complaint; and (3) no other

employee had ever been subjected to an absolute “no contact” order without

limiting it to the subject of the investigation. And in fact, the City’s PMA board

reviewing Frank’s investigation noted that Franks’ case appeared to have been

handled differently than any others it had seen and questioned whether the way the

police department handled this case constituted disparate treatment, especially

considering Franks was the highest ranked female in the department’s history.

Given that individuals who frequently deal with internal investigations at the Santa

Ana police department questioned whether the City’s actions were discriminatory,

a reasonable jury could come to the same conclusion.

      3.     The district court also incorrectly found that Franks presented

insufficient evidence for a reasonable jury to find she was subject to a hostile work

environment. To show that harassment is related to gender or sexual orientation

for purposes of FEHA, a plaintiff must show that (1) the plaintiff’s gender or

sexual orientation is “a substantial factor in the discrimination” and (2) if the

plaintiff had a different gender or sexual orientation, the plaintiff would not have

been treated in the same manner. Lyle v. Warner Bros. Television Prods., 38 Cal.


                                           4
4th 264, 280 (2006) (cleaned up). The analysis under FEHA is identical to that

under Title VII. Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000).

In determining whether a work environment is hostile, the court evaluates the

totality of the circumstances, “including the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee’s

work performance.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270–71

(2001) (per curiam). “It is enough if such hostile conduct pollutes the victim’s

workplace, making it more difficult for her to do her job, to take pride in her work,

and to desire to stay in her position.” Fuller v. Idaho Dep’t of Corr., 865 F.3d

1154, 1162 (9th Cir. 2017). In light of the improper management of the

investigation and aftermath, including ostracization, rampant rumors, and inability

to effectively manage her team, a reasonable jury could find the City’s

management of the investigation caused Franks to lose credibility at work and

substantially interfered with her ability to do her job.

      4.     The district court correctly found that Franks was not subject to a

constructive discharge. “To establish a constructive discharge, an employee must

plead and prove . . . that the employer either intentionally created or knowingly

permitted working conditions that were so intolerable or aggravated at the time of

the employee’s resignation that a reasonable employer would realize that a


                                           5
reasonable person in the employee’s position would be compelled to resign.”

Vasquez v. Franklin Mgmt. Real Estate Fund, Inc., 222 Cal. App. 4th 819, 826

(2013) (cleaned up). “The standard by which a constructive discharge is

determined is an objective one—the question is whether a reasonable person faced

with the allegedly intolerable employer actions or conditions of employment would

have no reasonable alternative except to quit.” Id. at 827 (cleaned up). Franks

“was not demoted, did not receive a cut in pay, and was not encouraged to resign

or retire,” see Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406 (9th Cir. 1996), nor

did she present any facts that were sufficiently severe to constitute a constructive

discharge.

AFFIRMED in part, REVERSED in part and REMANDED.




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