                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

PATRICIA HEISSER METOYER,              
                  Plaintiff-counter-
              defendant-Appellant,
                v.                           No. 04-56179
LEONARD CHASSMAN, an individual;
JOHN MCGUIRE, an individual,                  D.C. No.
                                           CV-03-08438-JFW
             Defendants-Appellees,
                                              OPINION
SCREEN ACTORS GUILD, INC., a
corporation,
               Defendant-counter-
                claimant-Appellee.
                                       
        Appeal from the United States District Court
           for the Central District of California
         John F. Walter, District Judge, Presiding

                  Argued and Submitted
            June 6, 2006—Pasadena, California

                 Filed September 26, 2007

  Before: Dorothy W. Nelson, Johnnie B. Rawlinson, and
              Carlos T. Bea, Circuit Judges.

             Opinion by Judge D.W. Nelson;
   Partial Concurrence and Partial Dissent by Judge Bea




                            13139
              METOYER v. SCREEN ACTORS GUILD           13143


                        COUNSEL

Marco Simons, Hadsell & Stormer, Inc., Pasadena, California,
for the appellant.

Anne Richardson, Hadsell & Stormer, Inc., Pasadena, Califor-
nia, for the appellant.

Rick Hicks, Hicks & Hicks, Beverly Hills, California, for the
appellant.

Eugenia Hicks, Hicks & Hicks, Beverly Hills, California, for
the appellant.

Catherine B. Hagen, O’Melveny & Myers, LLP, Newport
Beach, California, for the appellees.

Eric J. Amdursky, O’Melveny & Myers, LLP, Newport
Beach, California, for the appellees.

Renee M. Spigarelli, O’Melveny & Myers, LLP, Newport
Beach, California, for the appellees.
13144             METOYER v. SCREEN ACTORS GUILD
Ryan W. Rutledge, O’Melveny & Myers, LLP, Newport
Beach, California, for the appellees.


                                OPINION

D.W. NELSON, Senior Circuit Judge:

   In May, 2001 the Screen Actors Guild (“the Guild”) fired
Dr. Patricia Heisser Metoyer (“Metoyer”), an African-
American, after PricewaterhouseCoopers (“PwC”) concluded
Metoyer authorized payment in excess of $30,000 of funds
available for Guild use to friends, business partners, and her
husband’s production company. Metoyer responded by bring-
ing multiple claims against the Guild, including federal race
discrimination and retaliation claims under 42 U.S.C. § 1981
and state law discrimination claims under the California Fair
Employment and Housing Act (“FEHA”). The district court
granted summary judgment in favor of the Guild on all
claims. We reverse in part and find that Metoyer has raised a
triable issue of fact on all but one of the federal and state race
discrimination and retaliation claims.1

 I.   FACTUAL AND PROCEDURAL BACKGROUND2

A.    The Hiring Process

  In March 1998, Metoyer applied for employment with the
Guild listing the position she desired as “Affirmative Action
  1
     In a separate memorandum disposition, we affirm the district court’s
(1) denial of plaintiff’s motion for reconsideration, and (2) denial of plain-
tiff’s motion to re-tax costs. We also dispose of defendant’s argument that
plaintiff’s employment contract was void and, therefore, as a matter of law
cannot sustain plaintiff’s 42 U.S.C. § 1981 claims.
   2
     In our statement of the facts, we draw all reasonable inferences in favor
of Metoyer. See, e.g., Cornwell v. Electra Cent. Credit Union, 439 F.3d
1018, 1022 n.1 (9th Cir. 2006).
                METOYER v. SCREEN ACTORS GUILD                 13145
Director.” At that time, the Guild did not have an “Affirma-
tive Action Director” position; it had two “Executive Admin-
istrator of Affirmative Action” positions, one in New York
City and one in Hollywood.3 Metoyer was contacted by Kath-
ryn Nirschl (“Nirschl”), the Guild’s Executive Administrator
of Human Resources and invited to interview. Nirschl
informed Metoyer that although the title of the position was
that of “executive administrator”, she would in fact be the “di-
rector of affirmative action.” Nirschl assured Metoyer that the
salary would increase up to $89,000 once the position
changed to that of “director.”

   Metoyer also interviewed with John C. Barbadian, the
national director of human resources at the time, who told her
that because the affirmative action department was in such
disarray at SAG, the Guild needed a national director and that
her title would be changed to that of “director.” Finally, dur-
ing the interview with Richard Nasur, president of the
national board of directors of SAG, he referred to the position
that Metoyer was applying to as that of “director.”

  On April 27, 1998, after several rounds of interviews, Nir-
schl sent Metoyer a letter stating:

         It is a pleasure to confirm an offer of employment
      to you on behalf of the Screen Actors Guild. The
      Guild is a dynamic organization providing new chal-
      lenges and increasing responsibility.

         Your current offer of employment is for the posi-
      tion of Executive Administrator, Affirmative Action
      with an annual salary of $65,000 payable on a
      weekly basis. This assignment will begin on Tues-
      day, May 26, 1998. As an employee of the Screen
      Actors Guild, you are entitled to an extensive bene-
  3
   “SAG Hollywood” was considered the national headquarters and all of
the national director positions were in this office.
13146          METOYER v. SCREEN ACTORS GUILD
    fits package including health, dental, vision, a pen-
    sion plan, a credit union, and many other valuable
    benefits. Your eligibility for these benefits will com-
    mence August 1, 1998.

In a letter sent to Nirschl on May 6, 1998, Metoyer confirmed
her “acceptance of the position of Executive Administrator,
Affirmative Action, with all the terms and conditions as stated
in [Nirschl’s] letter dated April 27, 1998.”

   Throughout her tenure at the Guild, the nameplate on
Metoyer’s door read, “Patricia Heisser-Metoyer National
Executive Director Affirmative Action” and many of her co-
workers and SAG members referred to her as the national
director. Soon after Metoyer was hired, Linda Shick, the new
National Director of Human Resources who replaced Barba-
dian, again informed her that the Guild planned to appoint 30
directors and that her position of national director of affirma-
tive action would be one of them. Within a few months, all
of the planned appointments to national director positions
were granted except for Metoyer’s.

   In August, 1999 Metoyer petitioned the Guild’s Senior
Staff to create a National Director of Affirmative Action posi-
tion. John McGuire (“McGuire”), then the Guild’s Acting
Executive National Director, denied her request “because the
Affirmative Action department was not structured to function
nationally and, consequently, there was no need for a national
director.” Schick explained to Metoyer that SAG had never
had a person of color higher than the position she currently
held and that it would be very difficult for senior staff to
accept new ways. Specifically, she stated, “There are no peo-
ple of color on senior staff, and it’s very unlikely that there
will be.”

B. Metoyer’s Role in Relaying                  Discrimination
Complaints by SAG Employees

  Almost immediately after Metoyer was hired, she began to
be approached by minority employees within the Guild with
               METOYER v. SCREEN ACTORS GUILD            13147
complaints of racial discrimination. Several minority employ-
ees complained to Metoyer that the Guild’s senior staff,
including Schick, Leonard Chassman, Metoyer’s immediate
supervisor and the Guild’s Hollywood Executive Director,
and McGuire, (collectively “senior management”), were dis-
criminating on the basis of race in making promotions, assign-
ing work and pay. Metoyer assiduously related these
complaints to senior management and others throughout her
time at the Guild.

   Schick and Chassman responded to these complaints with
blatantly racist comments. In response to complaints that
African-Americans were being kept in low-paying jobs, Shick
stated: “I’m keeping them there because I want to keep an eye
on them because black people like to party and eat and don’t
do their work.” Chassman’s response was: “They ought to be
glad they have a job.” In another meeting sometime in 1998
in which Metoyer put forth complaints of minority employ-
ees, Chassman responded, “All of these people are lazy and
malingerers. Is that something special with African-
Americans that they have to socialize all the time and they are
never happy? They should be happy to have this job.” Many
of the employees told Metoyer that they were retaliated
against after she brought their complaints to the attention of
senior management.

   Schick warned Metoyer that she would not go far in the
organization because she was too outspoken and SAG senior
management did not tolerate people of color talking back the
way she did. Schick commented, “You talk more than other
black people here. The rest of them are like — they’re like a
tribe or something. They hang around together, and they don’t
talk. You’re unusual. You talk too much.” Metoyer became
concerned about her job because of the actions of senior man-
agement against other minority employees who brought com-
plaints. Metoyer asked Chassman whether she was “too
outspoken” and he responded affirmatively, explaining that
13148          METOYER v. SCREEN ACTORS GUILD
McGuire did not like her because she was too outspoken in
attempting to implement affirmative action policies.

   In 2000, SAG cut Metoyer’s budget and there was an
increase in racial discrimination complaints by SAG employ-
ees which culminated in the circulation of an anonymous let-
ter written by SAG minority employees. Chassman accused
Metoyer of “fomenting” discontent and unrest amongst SAG
employees regarding racial discrimination and encouraging
them to come forward with their race discrimination com-
plaints.

C.   Metoyer’s Findings of Irregularities in IACF Grants

  In addition to relaying complaints of racial discrimination,
Metoyer discussed with senior management the concerns of
guild members and herself about irregularities in several
IACF grants. In relevant part, Metoyer’s declaration states:

        From the time I was hired and throughout my
     employment, I regularly questioned the allocation of
     funds on several grants that are mandated to have
     Affirmative Action components and projects in
     them. I continuously complained to SAG senior staff
     about irregularities in certain IACF grant funds
     (Brakefield, Ward, and Jensen projects) for the fol-
     lowing reasons:

        A. Shawna Brakefield: Ms. Brakefield was paid
     for travel for staff and her husband out of IACF
     funds and was an independent contractor who was
     given a suite of offices at the Guild rent-free and
     access to telephones. She was also paid $85,000 as
     a salary while as an independent producer [she]
     entered competitions at festivals with her personal
     projects while she was representing the Guild (obvi-
     ous conflict of interest). She also paid for her hus-
     band’s travel out of these funds. The Board of
          METOYER v. SCREEN ACTORS GUILD             13149
Directors complained that she never included pro-
tected group members in the festivals for outreach
. . . only her husband and her staff. She was never
audited in spite of numerous complaints. She
received in excess of $1,000,000 without being
audited and did not account for the spending of the
money appropriately. She also spent IACF money to
print several thousand pictures of herself as [a] Char-
lie’s Angel and her staff and mailed them to promote
her personal production company, Brakefield Pro-
ductions. IACF funds are primarily to promote affir-
mative action activities. I complained to Leonard
Chassman and Jonn McGuire because members
asked me to complain. Nothing was ever done.

   B. Sharon Jensen: Ms. Jensen was responsible
for the “Non-Traditional Casting” project which was
funded for 10 years by SAG and IACF, and was
never audited. She was funded to set up a database
for members — the same type SAG provides for free
through my department. In 1992, she had 4,000
members and non-member stage actors and no pro-
tected group members. Members complained and
asked her to submit an accounting of the grant
money for the past 10 years. She never submitted a
report to them and received another $96,000 lump
sum payment in September 2000. I complained to
Leonard Chassman and John McGuire because
members asked me to complain on their behalf.
Nothing was ever done.

   C. Paul Ward: Mr. Ward was an independent
contractor who was paid over $200,000 to do a feasi-
bility study which was to be completed in one year.
However, after three years, Mr. Ward never submit-
ted a report. IACF funds are to go to educational
institutions or 501(c)(3) organizations, not to inde-
pendent contractors. Members complained to me, I
13150          METOYER v. SCREEN ACTORS GUILD
    reported their complaints to John McGuire and
    Leonard Chassman. Nothing was ever done.

       While affirmative action IACF grants were under
    very close scrutiny, these other grants went for years
    without any scrutiny or accountability whatsoever.
    Brakefield, Ward and Jensen were receiving large
    grants from IACF year after year while the affirma-
    tive action department, for which IACF had allo-
    cated funds for affirmative action activities, was
    being gutted. John McGuire was a senior staff mem-
    ber, a trustee on the board of IACF, and a mentor to
    these three grant recipients.

She informed the senior staff that she intended to take her
findings to SAG’s national board.

D. The Fraudulent Equal Employment Opportunity
Report (EEO-1)

   In fall 2000, an employee in the Guild’s Human Resources
department, Valerie Quetel (“Quetel”), suspected Shick was
preparing a fraudulent disclosure to the Equal Employment
Opportunity Commission (the “EEO-1 Report”). In Quetel’s
view, the EEO-1 report overstated the number of racial minor-
ities the Guild employed in high-level positions. Quetel told
Metoyer the EEO-1 report was fraudulent, and provided
Metoyer with a copy of the report. Metoyer compared the
EEO-1 report’s listing of high-level employees with an orga-
nization chart, and concluded that the Guild was, in fact, over-
stating the number of racial minorities in high-level positions.

  At a department head meeting in late 2000 attended by
McGuire and Chassman, Metoyer confronted Shick about the
EEO-1 Report. During the meeting, Chassman sided with
Shick and criticized Metoyer as being “out of line.” Quetel’s
declaration states that after the meeting she heard Shick
repeatedly say, “[t]hat bitch. I’m going to get that bitch.”
              METOYER v. SCREEN ACTORS GUILD            13151
After the meeting, Metoyer met privately with Chassman and
told him that she planned to disclose the fraudulent EEO-1
Report to the Guild’s plenary council, when it next met in
April 2001. As a result of the budgets cuts in her department
in 2000, Metoyer lacked the money to hire an employee to
help her administer IACF grants. She therefore entered into
written agreements with Loyola Marymount University
(“LMU”), whereby LMU agreed to hold grant funds in “es-
crow” for Metoyer. LMU agreed to pay out “escrowed” grant
funds to researchers, project coordinators, and vendors, upon
Metoyer’s order.

E.   Investigation into Metoyer’s Use of IACF Funds

  Between July and September 2000, Metoyer caused the
Guild to transfer approximately $120,000 in IACF grant funds
to LMU by ordering the Guild to pay several invoices on
LMU letterhead and listed LMU as the recipient of the funds.
Some of these invoices were created and submitted by LMU,
others by Metoyer. Metoyer told Chassman of her plan to
escrow the funds at LMU and received his approval.

   In November or December 2000, Sofia Banks, a temporary
employee at the Guild, discovered a suspicious-looking
invoice and check request in Metoyer’s box. The check
request was signed by Metoyer, and ordered a payment of
$10,736 in Guild funds to LMU. In describing the use to
which the funds were put, both documents listed seven events
purportedly scheduled by the Affirmative Action staff in
August 2000. Banks did not recall any of the seven events
taking place. Banks showed the invoice and check request to
another employee in the Affirmative Action department, Syl-
via Henriquez; Henriquez shared Banks’ suspicion that the
seven events listed on the invoice and check request had never
taken place. Henriquez, in turn, relayed her suspicion to
Elaine Gram, an Affirmative Action department staff mem-
ber. Gram knew the seven events had not occurred because,
as a member of the Affirmative Action staff, she would have
13152            METOYER v. SCREEN ACTORS GUILD
known about events planned by her department. Gram, Hen-
riquez, and Banks decided to take the matter to the Guild’s in-
house counsel, Vicki Shapiro.

   Gram turned over the invoice and check request to Shapiro.
Because the invoice and check request transferred funds to
LMU, and one of Metoyer’s employees, Celine Bae, had
worked at LMU during the month of August, Gram found
Metoyer’s check request questionable. In addition to giving
the invoice and check request to Shapiro, Gram informed Sha-
piro that Metoyer had earlier escrowed IACF grant funds with
LMU, as described above.

   Shapiro contacted Chassman, and together they approached
McGuire, who in addition to being the Guild’s highest-
ranking employee, was a member of IACF’s Board of Trust-
ees. Based on the invoice, check request, and Gram’s state-
ment that Metoyer had escrowed IACF grant funds with
LMU, McGuire was concerned that Metoyer might have mis-
handled IACF grant funds. In January 2001, McGuire, after
“consultation” with Chassman, turned the invoice over to the
IACF, and informed Bruce Dow, at the IACF, of his suspi-
cions. On January 9, 2001, McGuire met with Dow, Leo Geff-
ner (the Guild’s outside counsel), and three other IACF
trustees. McGuire informed all present of the invoice and the
Guild’s suspicions.

  On January 18, 2001, the IACF held a regularly-scheduled
board meeting, where the trustees discussed, in general terms
and without naming Metoyer, the need for greater account-
ability of grant funds. During a teleconference on January 23,
2001 the board voted to retain PwC to investigate all of its
outstanding grants.4 Metoyer was not invited to this meeting
or provided an opportunity to explain how she was properly
  4
  This was the first audit that had been done to anyone in the history of
SAG. Ultimately, PwC would investigate 26 of the Guild’s IACF grants.
                  METOYER v. SCREEN ACTORS GUILD                    13153
administering the IACF grants through the partnership with
LMU.

   By March 19, 2001, PwC had nearly completed its investi-
gation, finding Metoyer had ordered the Guild to escrow
roughly $120,000 in IACF grant funds with LMU and prelim-
inarily concluding Metoyer ordered LMU to pay two of her
current employees, Peter Nguyen and Celine Bae; one former
employee, Rachelle Bolding; and her husband IACF grant
funds without disclosing their identities to the Guild.5
                                             (Text continued on page 13155)

 5
  PwC’s investigation focused on four payments:
     Payment #1 — $27,155 in IACF Grant Funds for the Skills Bank
     Reorganization
        On July 25, 2000, Metoyer authorized the transfer of $27,155
     from the Guild’s IACF trust account to LMU for LMU’s work on
     the Skills Bank Reorganization project. Metoyer’s undisputed
     testimony is that she caused LMU to pay $5,000 of these funds
     to Peter Nguyen for “legal consultation services.” At the time,
     Nguyen was a Guild employee. Nguyen received this payment
     for researching whether it was legal of Metoyer to continue using
     a Skills Bank, which helped her find jobs for minority actors.
     Nguyen concluded the Skills Bank was legal and orally presented
     his conclusion to the Guild.
       PwC found this payment to be improper because (1) Nguyen
     was not a licensed attorney and (2) it could not verify that
     Nguyen did anything to earn the money.
     Payment #2 — $20,000 in IACF Grant Funds for the “Casting
     the American Scene” and “Performers with Disabilities” Proj-
     ects
        On September 14, 2000, Metoyer submitted two check
     requests to the Guild for a total of $20,000 in IACF grant funds.
     On September 21, 2000, Metoyer approved payment of her own
     check requests, thereby causing the Guild to transfer $20,000 in
     IACF grant funds to LMU. The check requests Metoyer submit-
     ted to the Guild indicated the purpose of the payment was for a
     “research coordinator” and “research associate” on the “Casting
     the American Scene” and “Performers with Disabilities” grants,
     respectively. The check request, however, did not include the
     identity of either the research coordinator or the research asso-
     ciate.
13154           METOYER v. SCREEN ACTORS GUILD
      On October 30, 2000, with Metoyer’s authorization, LMU paid
   this same $20,000 to Bolding, a friend and former employee of
   Metoyer at the Guild. PwC concluded that this payment was
   improper because (1) Bolding was Metoyer’s business partner in
   an event-planning firm, PRC, which derived its name from the
   first initials of Patricia Metoyer, Rachelle Bolding, and Celine
   Bae (2) Metoyer’s check requests to the Guild did not identify
   Bolding as the recipient, and (3) there was no documentation that
   Bolding did any work for the $20,000.
      Metoyer disputes PwC’s conclusion that Bolding was her busi-
   ness partner and the suggestion Bolding was not required to per-
   form any work for the $20,000 payment. There is no dispute,
   however, that (1) the ‘P” in PRC was derived from Metoyer’s
   first name, (2) Metoyer contributed several hundred dollars to
   PRC’s startup, and (3) the check requests Metoyer submitted to
   the Guild did not identify Bolding as the recipient of the grant
   funds. Likewise, there is no dispute that Bolding used the
   $20,000 payment to fund PRC’s startup.
   Payments #3 and #4 — $10,736 of Guild Funds and $2,197 of
   IACF Grant funds to LMU on the “Family Fun Fest”
      On or about August 9, 2000, Metoyer ordered Bolding to
   create an invoice from LMU charging the Guild $10,736 for
   seven events that did not take place due to a Guild strike.
   Metoyer then ordered payment of $10,736 in Guild funds to
   LMU based on a check request listing these same seven events.
      Metoyer ordered LMU to disburse this $10,736 to vendors who
   put on the Family Fun Fest she put on in lieu of the cancelled
   events. Specifically, Metoyer ordered LMU to pay Bae, a Guild
   employee, $2,599 for her work planning the Family Fun Fest pic-
   nic. At the time, Bae was also drawing her regular salary from the
   Guild. Metoyer also ordered LMU to pay $2,500 to Patois Pro-
   ductions for arranging entertainment at the Family Fun Fest.
   Although not apparent on the face of the invoice submitted to
   LMU, “Patois Productions” is Metoyer’s husband’s production
   company; $500 of the $2,500 payment went directly to Metoyer’s
   husband as a finder’s fee.
      The $10,736 in Guild funds transferred to LMU on the basis
   of the invoice Metoyer ordered Bolding to fabricate did not cover
   the total cost of the Family Fun Fest. Accordingly, LMU sent
                METOYER v. SCREEN ACTORS GUILD                   13155
   PwC also found the payments to Nguyen and Bolding ques-
tionable because it found no documentation indicating they
had provided anything of value to the IACF or the Guild in
exchange for their respective payments. PwC sent a report
containing these preliminary conclusions to Bruce Dow at
IACF, who then told McGuire, Chassman, and Geffner of
PwC’s findings.

  On March 22, 2001, Metoyer attended a meeting with
members of senior management including Chassman,
McGuire, Bruce Dow, Alice Ortega and two individuals she

   Metoyer an itemized invoice for the total cost of the Family Fun
   Fest. This invoice showed the $2,599 to Bae, the $2,500 to Patois
   Productions, payments to persons unrelated to Metoyer, and an
   outstanding balance of $2,197 for Family Fun Fest expenses. To
   avoid submitting this invoice to the Guild, Metoyer personally
   fabricated an invoice for $2,197 from LMU for a “reception for
   Dr. George Gerbner” by pasting this description on LMU letter-
   head. No such reception for Dr. Gerbner occurred. Rather,
   Metoyer explains Dr. Gerbner, despite not being in attendance,
   was honored at the Family Fun Fest. Dr Metoyer then prepared
   a check request ordering the Guild to pay $2,197 to LMU out of
   the IACF trust account to cover the balance of the Family Fun
   Fest expenses.
      PwC concluded the payment to Bae was improper because (1)
   Bae “appeared to have received double compensation . . . [with]
   Dr. Metoyer’s approval and assistance” and (2) Metoyer used
   false invoices to cause the Guild to transfer the money to LMU.
   Metoyer claims the double payment was proper because Bae was
   using “comp time” when she worked on the Family Fun Fest.
   Metoyer, however, admits telling Bolding to fabricate the first
   invoice and that she personally fabricated the second.
     PwC concluded the payment to Patois Productions was
   improper because (1) Metoyer used false invoices to hide the
   payment from the Guild, and (2) Metoyer never submitted the
   Patois Productions invoice to the Guild’s accounting department.
   Here, there is a triable issue of fact as to whether the Guild’s
   accounting department received the Patois Production invoice
   because the invoice bears a time stamp that Metoyer states is the
   same as that used by the Guild’s accounting department.
13156          METOYER v. SCREEN ACTORS GUILD
was introduced to for the first time as representatives of PwC.
Metoyer was told that the meeting was set up so that she
could discuss her complaints about ongoing racial discrimina-
tion, the fraudulent EEO-1 report and the irregularities she
found in the IACF funding. Instead of being allowed to
express her concerns, Metoyer was “cross-examined” by the
two PwC auditors about her use of IACF funds. This inter-
view was a violation of a SAG protocol that, if at any time
there was a question about a grant Metoyer was administer-
ing, she would be contacted by Alicia Ortega of the IACF
with specific questions. This was the process followed on
prior occasions in connection with Metoyer’s grant proposal.
Nevertheless, Metoyer cooperated. Over the course of several
hours, the auditors asked Metoyer about the transactions in
question and presented her with copies of the relevant
invoices and check requests. Metoyer acknowledged escrow-
ing IACF grant funds with LMU and authorizing LMU to dis-
burse both Guild and IACF funds to two current Guild
employees, one former Guild employee, and her husband’s
production company. Metoyer also admitted fabricating
invoices on LMU letterhead that had the effect of concealing
from the Guild the identity of those receiving Guild funds and
IACF grant funds.

   During the interview, Metoyer complained to McGuire of
race discrimination and reiterated complaints that Brakefield,
Jensen, and Ward were misusing funds but had never been
audited. Following the meeting, McGuire was prepared to ter-
minate Metoyer’s employment immediately. He decided,
however, to suspend Metoyer with pay, until he could investi-
gate her complaints of race discrimination and harassment. He
retained a lawyer from O’Melveny & Myers to do so.

F.   Termination of Metoyer’s Employment with SAG

 The next day, March 23, 2001, Metoyer was summoned to
McGuire’s office regarding a “personnel matter.” When
Metoyer arrived, Chassman was present. Metoyer asked to
               METOYER v. SCREEN ACTORS GUILD              13157
consult with her attorney before continuing. Later that day,
Chassman delivered a letter suspending Metoyer’s employ-
ment with pay. The suspension prevented Metoyer from
speaking at the April, 2001, plenary at which time she
planned to voice her concerns about the chronic race discrimi-
nation complaints against Senior Staff, the fraudulent EEO-1
reports, the Brakefield, Jensen, and Ward IACF grants, the
budget cuts, the failure to confirm her title, and Senior Staff’s
resistance to Metoyer’s performance of her affirmative action
duties.

  On May 17, 2001, the lawyer from O’Melveny & Myers
reported to McGuire that they were unable to make any find-
ings regarding Metoyer’s claims of racial discrimination and
harassment because Metoyer refused to participate in the
investigation. On May 30, 2001, McGuire terminated
Metoyer’s employment in a letter stating:

    The Guild is terminating your employment due to
    your unsatisfactory performance as Executive
    Administrator of the Guild’s Affirmative Action
    Department as set out in greater detail below. . . .

    The Guild has concluded, based on the findings and
    results of the investigation and audit by PWC, that
    you committed a number of serious acts of miscon-
    duct in administering the IACF grants. PWC con-
    cluded that (1) “friends, relatives, and business
    partners received payment from Loyola Marymount
    University;” (2) “Some invoices were manipulated to
    disguise the purpose of the payment”; and (3) “Some
    invoices were prepared by SAG employees, not the
    researchers.”

              II.   STANDARD OF REVIEW

  We review de novo the district court’s grant of summary
judgment to “determine, viewing the evidence in the light
13158             METOYER v. SCREEN ACTORS GUILD
most favorable to the nonmoving party, whether there are any
genuine disputes of material fact and whether the district
court correctly applied the relevant substantive law.” Morri-
son v. Hall, 261 F.3d 896, 900 (9th Cir. 2001) (citation omit-
ted). “We require very little evidence to survive summary
judgment in a discrimination case, because the ultimate ques-
tion is one that can only be resolved through a ‘searching
inquiry’ - one that is most appropriately conducted by the
factfinder, upon a full record.” Lam v. University of Hawaii,
40 F.3d 1551, 1564 (9th Cir. 1994) (citation and alteration
omitted).

                         III.   DISCUSSION

A.    Applicable Law

   [1] In analyzing Metoyer’s claims under § 1981, we apply
“the same legal principles as those applicable in a Title VII
disparate treatment case.” Fonseca v. Sysco Food Servs. of
Ariz. Inc., 374 F.3d 840, 850 (9th Cir. 2004) (citation omit-
ted). Typically, we apply the burden-shifting framework
established in McDonnell Douglas.6 See Fonseca, 374 F.3d at
850. But we have also held that “although the McDonnell
Douglas burden shifting framework is a useful tool to assist
at the summary judgment stage . . . nothing compels the par-
ties to invoke the McDonnell Douglas presumption.” McGin-
   6
     McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At the first
step of McDonnell Douglas, the plaintiff must establish a prima facie case
of discrimination or retaliation. If the plaintiff makes out her prima facie
case of either discrimination or retaliation, the burden then “shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for its alleg-
edly discriminatory [or retaliatory] conduct.” Vasquez v. County of Los
Angeles, 349 F.3d 634, 640 (9th Cir. 2003). Finally, at the third step of
McDonnell Douglas, if the employer articulates a legitimate reason for its
action, “the presumption of discrimination drops out of the picture, and the
plaintiff may defeat summary judgment by satisfying the usual standard of
proof required . . . under Fed. R. Civ. P. 56(c).” Cornwell, 439 F.3d at
1028 (citations and internal quotation marks omitted).
                METOYER v. SCREEN ACTORS GUILD              13159
est v. GTE Service Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)
(citation and internal quotation marks omitted). Instead,
“when responding to a summary judgment motion . . . [the
plaintiff] may proceed by using the McDonnell Douglas
framework, or alternatively, may simply produce direct or cir-
cumstantial evidence demonstrating that a discriminatory rea-
son more likely than not motivated [the employer].” Id.
(citation omitted). “When the plaintiff offers direct evidence
of discriminatory motive, a triable issue as to the actual moti-
vation of the employer is created even if the evidence is not
substantial.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217,
1221 (9th Cir. 1998); see also Wallis v. J.R. Simplot Co., 26
F.3d 885, 889 (9th Cir. 1994) (concluding that on summary
judgment, “[t]he requisite degree of proof necessary to estab-
lish a prima facie case . . . is minimal and does not even need
to rise to the level of a preponderance of the evidence”).

   [2] In a Title VII discrimination case, even an employer
who can successfully prove a mixed-motive defense, i.e., he
would have made the same decision regarding a particular
person without taking race or gender into account, does not
escape liability. See 42 U.S.C. § 2000e-5(g)(2)(B); see also
Costa v. Desert Palace, Inc., 299 F.3d 838, 857 (9th Cir.
2002) (en banc), aff’d by, Desert Palace, Inc. v. Costa, 539
U.S. 90 (2003) (explaining that in a Title VII discrimination
case, “the employer will escape the imposition of damages
and any order of reinstatement, hiring, promotion,” but will
still be “liable . . . for attorney’s fees, declaratory relief, and
an order prohibiting future discriminatory actions”). There-
fore, the mixed-motive defense, even if proven as an undis-
puted fact, does not provide a basis for summary judgment in
a Title VII case. See Dominguez-Curry v. Nevada Transp.
Dept., 424 F.3d 1027, 1041-42 (9th Cir. 2005).

  Metoyer, however, brought her claims under § 1981. The
appellee contends that based on the plain language of the
Civil Rights Act of 1991, the amendment eliminating the
mixed-motive defense does not apply to any cause of action
13160          METOYER v. SCREEN ACTORS GUILD
brought under § 1981. Therefore, if the Guild “can prove that,
even if it had not taken [race and] gender into account, it
would have come to the same decision regarding a particular
person[,]” then it has an affirmative defense to a cause of
action for discrimination and retaliation under § 1981. Price
Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989).

   To support this contention, the appellees rely on the Elev-
enth Circuit case of Mabra v. United Food & Commercial
Workers Local Union No. 1996, 176 F.3d 1357 (11th Cir.
1999). The Eleventh Circuit in Mabra determined that the
mixed-motive defense applied to causes of action under
§ 1981. The court reasoned that in the 1991 Civil Rights Act,
Congress amended Title VII to eliminate the mixed-motive
defense but when Congress amended § 1981 in the same Act,
it did not address the applicability of the mixed-motive
defense. From this congressional silence, the court concluded
that the mixed-motive defense continued to apply to causes of
action brought under § 1981. Id. at 1358. The Eleventh Cir-
cuit’s reasoning relies on the faulty premise that the mixed-
motive defense applied to causes of action brought under
§ 1981 prior to the Civil Rights Act of 1991. Whatever the
applicability of the mixed-motive defense to liability in Elev-
enth Circuit case law prior to the Civil Rights Act of 1991, we
have never held that an employer’s mixed-motive acted as a
complete defense to liability from causes of action brought
under § 1981.

   Instead, prior to the Civil Rights Act of 1991, we held that
a defendant in a Title VII suit can avoid damages in the form
of back pay or retroactive award of appointment, promotion
or seniority if she can establish “by ‘clear and convincing evi-
dence’ that even in the absence of discrimination the rejected
applicant would not have been selected for the open position.”
Marotta v. Usery, 629 F.2d 615, 617-18 (9th Cir. 1980); see
also Jauregui v. City of Glendale, 852 F.2d 1128, 1136-37
(9th Cir. 1988) (applying the Marotta standard at the damages
phase when a plaintiff sought to be awarded a position retro-
                METOYER v. SCREEN ACTORS GUILD              13161
actively); Fadhl v. City and County of San Francisco, 741
F.2d 1163, 1166 (9th Cir. 1984) (applying the Marotta stan-
dard to the damages phase of a case when a plaintiff sought
back pay and an order of reinstatement); Felton v. Trustees of
California State Universities and Colleges, 708 F.2d 1507,
1509 (9th Cir. 1983) (applying the Marotta standard to a case
in which the plaintiff sought the remedies of retroactive
appointment and back pay) LULAC v. City of Salinas Fire
Dept., 654 F.2d 557, 558 (9th Cir. 1981) (applying the
Marotta standard to the damages phase of a case in which the
plaintiff that sought to be awarded a position retroactively at
the damages phase). Notably, we never held that an employ-
er’s mixed-motive acted as a defense to liability.

   During the period prior to the Civil Rights Act of 1991, we
did not once address the applicability of a mixed-motive
defense to liability or damages to causes of actions brought
under § 1981. This was likely the result of the fact that plain-
tiffs rarely brought employment discrimination claims solely
under § 1981. Nonetheless, at the time that we were applying
the mixed-motive defense to damages in Title VII cases, we
held in cases that brought both Title VII and § 1981 claims
that “[t]he same standards are used to prove both claims, and
facts sufficient to give rise to one are sufficient to give rise to
the other.” Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th
Cir. 1985) (citation omitted). Therefore, by extension of this
holding, the mixed-motive defense to damages applied to
claims brought under both Title VII and § 1981.

   In Price Waterhouse, the Supreme Court determined in a
Title VII discrimination suit that a mixed-motive defense to
liability was applicable. Under the Price Waterhouse stan-
dard, “an employer shall not be liable if it can prove that, even
if it had not taken [the impermissible characteristic] into
account, it would have come to the same decision regarding
a particular person.” Price Waterhouse, 490 U.S. at 242. This
standard obviously conflicted with the standard established in
the Ninth Circuit in which an employer’s mixed-motive only
13162          METOYER v. SCREEN ACTORS GUILD
acted as a defense to damages, not to liability. Importantly
though, the plaintiff in Price Waterhouse did not bring a
§ 1981 claim and the Court never addressed the applicability
of the mixed-motive defense to liability for a claim brought
under § 1981. After the decision in Price Waterhouse, neither
we nor the Supreme Court ever applied the Price Waterhouse
standard to a claim brought under § 1981. In addition, subse-
quent to Price Waterhouse, we never determined that the legal
principles under Title VII continued to apply to claims
brought under § 1981 in light of the changes to the Title VII
standard.

   Two years after the Supreme Court’s decision in Price
Waterhouse, Congress amended Title VII. This amendment
was in direct response to the Supreme Court’s interpretation
of Title VII as including a mixed-motive defense to liability.
The House Committee on the Judiciary stated in its Report on
the Civil Rights Act of 1991:

    The Court’s holding in Price Waterhouse severely
    undermines protections against intentional employ-
    ment discrimination by allowing such discrimination
    to escape sanction completely under Title VII. Under
    this holding, even if a court finds that a Title VII
    defendant has clearly engaged in intentional discrim-
    ination, that court is powerless to end that abuse if
    the particular plaintiff who brought the case would
    have suffered the disputed employment action for
    some alternative, legitimate reason.

H.R. Rept. 102-40(II) at 18 (1991), reprinted in 1991
U.S.C.C.A.N. 549. For these reasons Congress amended Title
VII “to restore the rule applied by the majority of the circuits
prior to the Price Waterhouse decision that any discrimination
that is actually shown to play a role in a contested employ-
ment decision may be the subject of liability.” Id. Therefore,
the pre-Price Waterhouse Ninth Circuit standard was restored
                 METOYER v. SCREEN ACTORS GUILD                    13163
in which there was only a mixed-motive defense to damages,
not to liability.7

   [3] Since the Supreme Court in Price Waterhouse only
applied the mixed-motive defense to a discrimination claim
brought under Title VII, there was no need for Congress to
amend § 1981 to eliminate a defense never held applicable.
The Supreme Court had never held that the Title VII legal
standard applied to discrimination claims brought under
§ 1981 and that therefore the mixed-motive defense to liabil-
ity applied to claims brought under both Title VII and § 1981.
Therefore, it is unreasonable, as the Eleventh Circuit has, to
place any weight on the fact that Congress did not amend
§ 1981 in the Civil Rights Act of 1991 to eliminate a mixed-
motive defense not known by Congress to exist.

   The appellees can reason that since we held prior to Price
Waterhouse that the same legal standard applied to discrimi-
nation claims brought under Title VII and § 1981, the estab-
lishment of a mixed-motive defense to liability under Price
Waterhouse was automatically, without additional guidance
from this Court, applicable to claims under § 1981. As a
result, Congress’s failure to amend § 1981 at the same time as
it amended Title VII meant that the mixed-motive defense to
liability continued to apply to causes of action brought under
§ 1981. Therefore, the appellees, following the logic of the
Eleventh Circuit opinion in Mabra, contend that the plain lan-
guage of § 1981 requires applicability of the mixed-motive
defense to liability. The problem with this analysis is twofold.
  7
   One difference between the pre-Price Waterhouse standard and the
post-Civil Rights Act of 1991 standard was the change in evidentiary
requirements for the mixed-motive defense to damages. Prior to Price
Waterhouse, the Ninth Circuit required that a defendant prove by clear and
convincing evidence that it would have made the same decision. See
Marotta, 629 F.2d at 618. The Civil Rights Act of 1991 requires defen-
dants to prove by a preponderance of the evidence that it would have made
the same decision. See Costa, 539 U.S. at 97.
13164          METOYER v. SCREEN ACTORS GUILD
   [4] First, there is nothing in the plain language of § 1981
establishing a mixed-motive defense to liability. In relevant
part the statute simply states:

    All persons within the jurisdiction of the United
    States shall have the same right in every State and
    Territory to make and enforce contracts, to sue, be
    parties, give evidence, and to the full and equal ben-
    efit of all laws and proceedings for the security of
    persons and property as is enjoyed by white citizens,
    and shall be subject to like punishment, pains, penal-
    ties, taxes, licenses, and exactions of every kind, and
    to no other.

42 U.S.C. § 1981. Any mixed-motive defense would have to
be interpreted by the courts into the statute. Second, assuming
the soundness of the logic that Price Waterhouse, without any
additional guidance from this Court, was automatically
extended to claims under § 1981, and that in order to elimi-
nate the mixed motive defense to liability under § 1981, Con-
gress was required to amend the statute, we must carry it a
step further.

   [5] Subsequent to the amendment of Title VII in the Civil
Rights Act of 1991, we clearly determined, in accordance
with the congressional amendment, that in a Title VII suit an
employer could not avoid liability on the basis of the mixed-
motive defense. Costa, 299 F.3d at 850 (9th Cir. 2002) aff’d
539 U.S. 90 (2003). In a later case, we re-confirmed the pre-
Price Waterhouse determination that an “[a]nalysis of an
employment discrimination claim under § 1981 follows the
same legal principles as those applicable in a Title VII dispa-
rate treatment case.” Fonseca, 374 F.3d at 850. As a result, at
the very least our holding in Fonseca incorporated the
amended Title VII into the § 1981 analysis such that the
mixed-motive defense to liability is no longer available under
§ 1981. We therefore hold that the defendant cannot raise a
mixed-motive defense to liability for discrimination claims
               METOYER v. SCREEN ACTORS GUILD             13165
brought under § 1981. The mixed-motive defense, even if
proven as an undisputed fact, does not provide a basis for
summary judgment in a § 1981 discrimination case. See
Dominguez-Curry, 424 F.3d at 1041-42.

   [6] According to the same logic, we must find that a mixed-
motive defense to liability is available for a retaliation claim
brought under § 1981. In Stegall v. Citadel Broadcasting
Company, we applied the mixed-motive defense to liability in
a Title VII retaliation case. 350 F.3d 1061, 1062, 1068 (9th
Cir. 2004). Since a claim under § 1981 follows the same legal
principles as those applicable in a Title VII case, see Fonseca,
374 F.3d at 850, we hold that the mixed-motive defense to lia-
bility for retaliation found applicable in Stegall, also applies
to this retaliation claim brought under § 1981. Therefore, if
the mixed-motive defense to retaliation is proven as an undis-
puted fact, it can provide a basis for summary judgment.

B.     Section 1981 Claims

   Metoyer’s complaint alleged three § 1981 claims: (1) dis-
crimination in the terms, conditions or privileges of employ-
ment based on SAG’s failure to confirm her as National
Director of Affirmative Action; (2) wrongful termination; and
(3) retaliation. We affirm summary judgment on the claim of
discrimination in the terms, conditions or privileges of
employment, but reverse on the grant of summary judgment
on Metoyer’s wrongful termination and retaliation claims.

  1.    Discriminatory Breach of Contract

   Metoyer’s first § 1981 claim is that she was discriminated
in the terms, conditions, or privileges of employment. In par-
ticular, she contends that SAG made oral representations that
she was being hired for the position of National Director of
Affirmative Action but she was never confirmed for the posi-
tion and she remained in the lesser position of Executive
13166          METOYER v. SCREEN ACTORS GUILD
Administrator of Affirmative Action throughout her employ-
ment. In this position Metoyer received less pay.

   [7] Section 1981 prohibits discrimination in the “benefits,
privileges, terms, and conditions” of employment, see 42
U.S.C. § 1981(b); see also Bains LLC v. Arco Products Co.,
Div. of Atlantic Richfield Co., 405 F.3d 764, 769 n.3 (9th Cir.
2005), and an employee’s title and pay grade qualify as a
privilege, term, or condition of employment. See e.g. Hishon
v. King & Spalding, 467 U.S. 69, 75 (1984). In order to show
discrimination, Metoyer must show that she was contractually
entitled to the position of National Director of Affirmative
Action such that her title and accompanying pay grade consti-
tuted one of the terms, conditions, or privileges of her
employment. See id. (holding that the “terms, conditions, or
privileges of employment” clearly included benefits that are
part of an employment contract). Metoyer’s claim fails
because, due to the parol evidence doctrine, there is no admis-
sible evidence establishing the Guild had a contractual obliga-
tion to confirm her as the National Director of Affirmative
Action.

   [8] Under California law, “[w]hether [an] agreement is
[integrated] is a question of law for the judge.” Slivinsky v.
Watkins-Johnson Co., 221 Cal. App. 3d 799, 805 (1990) (cita-
tion omitted). An express integration clause is not necessary
to a determination that an agreement is integrated. See Heller
v. Pillsbury Madison & Sutro, 50 Cal. App. 4th 1367, 1382
(1996) (citation omitted). Rather, “[t]he central question in
determining whether there has been an integration, and thus
whether the parol evidence doctrine applies, is whether the
parties intended their writing to serve as the exclusive embod-
iment of their agreement.” Wagner v. Glendale Adventist
Medical Center, 216 Cal. App. 3d 1379, 1385-86 (1989) (cita-
tion and internal quotation marks omitted). Even “[w]hen
only part of the agreement is integrated, the parol evidence
rule applies to that part.” Slivinsky, 221 Cal. App. 3d at 805
(citation, internal quotation marks and alterations omitted).
               METOYER v. SCREEN ACTORS GUILD             13167
Although the court may consider evidence of surrounding cir-
cumstances, prior negotiations, and collateral agreements
when determining integration, “[i]n the case of prior or con-
temporaneous representations, the collateral agreement must
be one which might naturally be made as a separate contract,
i.e., if in fact agreed upon need not certainly have appeared
in writing.” Wagner, 216 Cal. App. 3d. at 1386 (citation omit-
ted).

   [9] Here, the Guild offered and Metoyer accepted employ-
ment as the Guild’s Executive Administrator of Affirmative
Action. Together, the Guild’s offer letter and Metoyer’s
acceptance letter constitute an integrated employment con-
tract. The Guild manifested its intent that the agreement be
the final embodiment of their agreement by including all
material terms: title, salary, benefits, and a starting date. In
addition, the disclaimers contained in Guild’s pre-printed
employment application manifested a general intent on the
part of the Guild that its employment contracts be integrated.
Metoyer acknowledged the Guild’s intent, either before or
shortly after she accepted the Guild’s offer of employment, by
signing an application, stating:

    I understand that nothing contained in this applica-
    tion or conveyed during my interview which may be
    granted by the Guild is intended to create an employ-
    ment contract between me and the Guild.

                        *      *     *

    I understand that no representative of the Guild has
    any authority to enter into any agreement for
    employment for any specified period of time, or to
    make commitments or promises or assure any bene-
    fits or other terms and conditions of employment
    unless such agreements, promises, commitments or
    assurances are made in writing and signed by the
    Executive Director of Screen Actors Guild.
13168          METOYER v. SCREEN ACTORS GUILD
(emphasis added).

   Moreover, Metoyer manifested her intent that the Guild’s
offer letter and her acceptance letter be the final embodiment
of their agreement by explicitly accepting on the basis of the
terms contained in the Guild’s letter: “This letter is written to
confirm my acceptance of the position of Executive Adminis-
trator, Affirmative, with all the terms and conditions as stated
in your letter dated April 27, 1998.” (emphasis added).

   [10] Notwithstanding the fact that neither the Guild’s offer
letter nor her acceptance letter mentions future confirmation
as the National Director of Affirmative Action, Metoyer
alleges discrimination in the “terms, conditions, or privileges
of employment” under § 1981 because of SAG’s failure to
confirm her as the National Director of Affirmative Action. In
support of this claim, Metoyer offers oral representations
made by Nirschl and Barbadian during her interview process.
Specifically, she offers Nirschl’s statement that the Guild
would be changing the Executive Administrator of Affirma-
tive Action position into a National Director of Affirmative
Action position within a few months. Under the parol evi-
dence doctrine, Nirchl’s prior oral representations, which
would not naturally have been made as a separate contract,
are inadmissible “to vary or contradict the terms of an inte-
grated written instrument.” Wagner, 216 Cal. App. 3d at 1385
(citations omitted). In addition, Metoyer acknowledges the
qualified nature of similar representations by Barbadian:

    Q.   What did he say about it?

    A. He said that the department was in disarray and
    basically, because of the requirements of the job, the
    title should be — should be director, as with my
    other position. He basically said that — the same
    thing Ms. Nirschl said, but that the executive — this
    executive administrator position would be changed,
    probably.
               METOYER v. SCREEN ACTORS GUILD              13169
    Q. Did he give you any time line where it would
    be changed?

    A.   No.

    Q. Did he promise you “Absolutely, I promise you
    it will be changed”?

    A.   No, because he said he might be leaving.

Even if the title of Metoyer’s position were not part of an inte-
grated employment contract, “[t]here cannot be a valid
express contract and an implied contract, each embracing the
same subject, but requiring different results” because the “ex-
press term is controlling even if it is not contained in an inte-
grated employment contract.” Halvorsen v. Aramark Uniform
Services, Inc., 65 Cal. App. 4th 1383, 1388 (1998) (citations
omitted).

   Alternatively, Metoyer can prove discrimination in privi-
leges of employment on the basis of discriminatory denial of
benefits that were not included in her contract. See Hishon,
467 U.S. at 75 (“An employer may provide its employees
with many benefits that it is under no obligation to furnish by
any express or implied contract.”). But this benefit must be
“part and parcel of the employment relationship.” Id. For
example in Hishon, the Supreme Court held that “the opportu-
nity to become a partner [in a law firm] was part and parcel
of an associate’s status as an employee [at the law firm].” Id.
at 76. Metoyer’s claim fails on this account as well. There is
no evidence that confirmation as National Director of Affir-
mative Action was part and parcel of her position as Execu-
tive Administrator of Affirmative Action. In fact, the evidence
points to the contrary. At the time of Metoyer’s hiring, no
position of National Director of Affirmative Action existed
within SAG and as a result, the other Executive Administrator
of Affirmative Action in New York City and prior Executive
Administrators of Affirmative Action had not regularly been
13170          METOYER v. SCREEN ACTORS GUILD
elevated to such a position in a manner comparable to the ele-
vation of associates to partners in law firms.

   [11] Accordingly, we hold the district court did not err in
granting the Guild summary judgment as to Metoyer’s “fail-
ure to confirm” claim because there is no triable issue of fact
regarding the terms of Metoyer’s employment contract or the
privileges of her employment. Specifically, there is no admis-
sible evidence supporting Metoyer’s claim the Guild was con-
tractually obligated to confirm her as National Director of
Affirmative Action or that it was a privilege of her employ-
ment.

  2.    Wrongful Termination

   Metoyer’s second contention is that the district court erred
in granting summary judgment as to her claims of discrimina-
tory termination under § 1981. The district court applied the
McDonnell Douglas burden shifting framework and deter-
mined that the plaintiff “failed to present ‘specific’ and ‘sub-
stantial’ circumstantial evidence of pretext sufficient to raise
a genuine issue of material fact” with respect to SAG’s deci-
sion to terminate her.

  Metoyer contends that the district court erred in granting
summary judgment because she presented both direct and cir-
cumstantial evidence demonstrating that SAG management
harbored discriminatory animus toward African-Americans.
We agree.

   [12] Metoyer presented direct evidence of discrimination in
the form of several remarks by members of senior manage-
ment suggesting the existence of racial bias. We have held
that bigoted remarks by a member of senior management may
tend to show discrimination, even if directed at someone other
than the plaintiff. Cordova v. State Farm Ins. Cos., 124 F.3d
1145, 1149 (9th Cir. 1997). Furthermore, we have held that
remarks by such a decisionmaker tend to show bias, even if
               METOYER v. SCREEN ACTORS GUILD            13171
several years old. See Mustafa v. Clark County School Dist.,
157 F.3d 1169, 1179-80 (9th Cir. 1998).

   Beginning in August of 1999, when Metoyer petitioned the
Guild’s Senior Staff to create a National Director of Affirma-
tive Action position, Linda Schick, explained, “[t]here are no
people of color on senior staff, and it’s very unlikely that
there will be.” As part of her job, Metoyer related complaints
of racial discrimination by minority employees within the
Guild. Shick responded to Metoyer’s relayed complaints that
African-Americans were being kept in low-paying jobs by
stating, “I’m keeping them there because I want to keep an
eye on them because black people like to party and eat and
don’t do their work.” Chassman responded, “[t]hey ought to
be glad they have a job.” In another meeting, Chassman made
a discriminatory remark to Metoyer in response to more com-
plaints of discrimination by minority employers: “All of these
people are lazy and malingerers. Is that something special
with African-Americans that they have to socialize all the
time and they are never happy? They should be happy to have
this job.” Schick warned Metoyer that SAG senior manage-
ment did not tolerate people of color talking back the way she
did, commenting that “you talk more than other black people
here. The rest of them are like — they’re like a tribe or some-
thing. They hang around together, and they don’t talk. You’re
unusual. You talk too much.”

   [13] Metoyer has also presented circumstantial evidence of
discriminatory animus held by SAG senior management
towards African-Americans. The numerous complaints of dis-
crimination by minority employees of SAG, in particular the
complaints to Metoyer that the Guild’s senior staff, including
Schick, Chassman and McGuire were discriminating on the
basis of race in making promotions and assigning work and
pay is circumstantial evidence demonstrating discriminatory
animus.
13172            METOYER v. SCREEN ACTORS GUILD
   The Guild contends that McGuire was the sole decision-
maker in terminating Metoyer. Therefore, the discriminatory
statements by Shick and Chassman are irrelevant because they
had no role in the termination decision. The Guild argues that
since there is no direct evidence of discriminatory animus by
McGuire, summary judgment was appropriate. The Guild is
correct in its contention that there is no evidence linking
Schick to the termination decision, but there is evidence that
raises a genuine issue of material fact as to the role of Chass-
man in the firing decision. Chassman was Metoyer’s direct
supervisor at SAG and was, therefore, responsible for deci-
sions regarding her employment. In particular, he had the
authority to terminate her employment. McGuire consulted
with Chassman on the decision to suspend Metoyer. The letter
informing Metoyer of that decision was signed and delivered
by Chassman. Just prior to being placed on administrative
leave, Metoyer was summoned to McGuire’s office regarding
“a personnel matter”; when she arrived Chassman was present.8

   Even if Chassman is not considered the ultimate decision-
maker, “[w]here . . . the person who exhibited discriminatory
animus influenced or participated in the decisionmaking pro-
cess, a reasonable factfinder could conclude that the animus
affected the employment decision.” Dominguez-Curry, 424
F.3d at 1039-40 (citation omitted). Metoyer has presented
ample evidence from which a trier of fact could conclude that
Chassman influenced or participated in the decisionmaking
process. Combining the evidence raising a triable issue of fact
regarding Chassman’s role or influence in the decisionmaking
process with the evidence of his discriminatory remarks,
Metoyer has presented direct evidence sufficient to survive
summary judgment of discriminatory animus by a decision-
maker.
  8
    There is also evidence in the form of a letter from SAG’s president to
Chassman and McGuire regarding disciplinary actions against “members”
of the department that Chassman and McGuire were generally working
together with respect to all dismissals in the Affirmative Action depart-
ment.
               METOYER v. SCREEN ACTORS GUILD              13173
   There is evidence that the Guild was not motivated by dis-
crimination in terminating Metoyer. In particular, the Guild
contends that Metoyer was terminated because of the PwC
audit, which showed that Metoyer had misappropriated more
than $30,000 in IACF grant funds. However, there is also evi-
dence in the record to the contrary. Specifically, McGuire,
who had previously demonstrated racial animus toward
Metoyer, testified in his deposition that the PwC audit “was
to be of the three [Metoyer] grants that we’ve been talking
about.” When asked why the audit was limited to just these
grants, McGuire responded, “The reason was because of the
concerns raised specifically that that’s where the audit should
be concentrated.” This conflicting evidence raises a material
issue of fact precluding summary judgment.

   [14] In light of the substantial direct and circumstantial evi-
dence of discriminatory animus by SAG management, which
made the decision to audit Metoyer, we conclude that
Metoyer has raised a genuine issue of fact as to whether SAG
was more likely than not motivated by discrimination in its
decision to terminate her. See id. at 1042 (“[T]he plaintiff in
any Title VII case may establish a violation through a prepon-
derance of the evidence . . . that a protected characteristic
played ‘a motivating factor. To overcome summary judgment,
a plaintiff merely must raise a triable issue as to this ques-
tion.” (citation omitted)). Therefore, we conclude that the dis-
trict court erred in its grant of summary judgment on the
§ 1981 claim of discriminatory termination.

  3.   Retaliation

   [15] Metoyer presented both direct and circumstantial evi-
dence of retaliation for bringing discrimination complaints to
the attention of SAG management and for highlighting the
fraudulent Equal Employment Opportunity (EEO-1) report
submitted to the Equal Employment Opportunity Commission
(EEOC). In spite of her position as Executive Administrator
of Affirmative Action, Metoyer was told that it was not her
13174           METOYER v. SCREEN ACTORS GUILD
business to raise complaints of racial discrimination and that
she was not to take her concerns to anyone other than Schick
and Chassman. When appellant failed to heed the warnings
that her opposition to discrimination was unwelcome, senior
staff responded to the relayed complaints with discriminatory
comments about African-Americans by both Schick and
Chassman. See supra III.B.2. Chassman accused Metoyer of
encouraging SAG employees to come forward with com-
plaints of racial discrimination and became angry that
Metoyer was sowing discontent by raising allegations of dis-
crimination. Finally, when the appellant raised the fraudulent
EEO-1 report to SAG Senior management and announced her
intention to discuss the discrepancies and present the discrimi-
nation complaints by employees to SAG’s national plenary
session in April 2001, Schick responded vindictively, “That
bitch, I’m going to get that bitch.” Shortly before the plenary
session, Metoyer was suspended by SAG senior management
ostensibly because of the findings from the PwC audit. As a
result of the suspension, Metoyer was not allowed to address
the plenary session.

   The direct evidence of retaliatory intent by Chassman, a
participant in the suspension and termination decision, for
Metoyer’s engagement in protected activity, and the timing of
the suspension, which ultimately resulted in Metoyer’s termi-
nation, raises a triable issue of fact as to the § 1981 retaliation
claim.

   The Guild asserts a “mixed-motive” defense under which
an employer can avoid liability for retaliation by showing that
it would have made the same decision absent any impermissi-
ble motivation. See Stegall, 350 F.3d at 1068; Price Water-
house, 490 U.S. at 242. “As to the employer’s proof, in most
cases, the employer should be able to present some objective
evidence as to its probable decision in the absence of an
impermissible motive.” Id. at 252. “The mixed-motive inquiry
is an intensely factual one.” Gilbrook v. City of Westminster,
177 F.3d 839, 855 (9th Cir. 1999). Further, since the defen-
               METOYER v. SCREEN ACTORS GUILD            13175
dant bears the burden of proof on the mixed-motive defense,
“the defendant[ ] must vault a very high hurdle” to obtain
judgment as a matter of law. Settlegoode v. Portland Public
Schools, 371 F.3d 503, 512 (9th Cir. 2004). Accordingly,
mixed-motive defenses are generally for the jury to decide.

   [16] We hold that SAG has not presented sufficient evi-
dence to support summary judgment based on the mixed-
motive defense. The Guild contends that its mixed-motive
defense is supported by an investigation conducted by a third-
party accounting firm that concluded Metoyer made question-
able payments to Bae and Nguyen, two current Guild employ-
ees; Bolding, a recent Guild employee; and Metoyer’s
husband’s production company. While the facts of the mis-
conduct are undisputed, SAG’s contention that it would have
made the same decision is undermined by Metoyer’s declara-
tion that other persons engaged in questionable practices
related to IACF funds and faced no disciplinary conse-
quences.

   [17] In addition to the McGuire testimony, there was also
evidence in the record that the PwC audit was not a com-
pletely unbiased investigation. Ron Thompson, C.P.A., evalu-
ated the methodology utilized by PwC, and concluded that
there were questions concerning whether the investigation
truly encompassed all outstanding grants. Thompson based
his conclusion on a statement in the PwC report that PwC was
retained “to evaluate certain grant activities based upon alle-
gations of potential misconduct by one of the grant adminis-
trators[,]” specifically those grants administered by Dr.
Metoyer. Thompson also suggested that the other grants were
only mentioned in the report to prevent the appearance that
Dr. Metoyer’s grants were the target of the investigation.
Thompson’s opinion was supported by a statement from Dan-
iel Smith-Christopher, a professor at Loyola Marymount Uni-
versity, that during his interview with PwC, the focus was on
Dr. Metoyer. This evidence raised a material question of fact
regarding whether discriminatory animus prompted and influ-
13176              METOYER v. SCREEN ACTORS GUILD
enced the PwC investigation, rendering summary judgment
inappropriate. We therefore reverse summary judgment on the
§ 1981 retaliation claim.

  4.     State Law Discrimination and Retaliation Claims

   Metoyer has also presented claims of discrimination and
retaliation under the California Fair Employment and Housing
Act. The appellees contend that she consented to the dismissal
of these state law claims. We hold that Metoyer has not con-
sented to the dismissal of her state law claims and that judg-
ment on the pleadings is reversed on both claims.

   This case was first filed in California state court. Metoyer
originally pleaded only state-law discrimination claims. After
the state trial judge granted the Defendant’s motion for sum-
mary judgment on the basis that, under the Supremacy Clause
of the United States Constitution, U.S. Const. Art. VI, cl. 2,9
the Labor-Management Reporting and Disclosure Act of 1959
(“LMRDA”) preempted Metoyer’s FEHA claims, Metoyer
added her § 1981 claims and the defendants removed the case
to federal court. Defendants moved for summary judgment,
contending once again that the LMRDA preempts FEHA,
thereby barring Metoyer’s FEHA based claims. During argu-
ment on this motion, the court explained its view that the case
would be won or lost on the § 1981 claims and asked
Metoyer’s counsel, “[W]hy not just dismiss the [FEHA]
claim?”
  9
   Article VI, clause 2, of the United States Constitution states:
      This Constitution, and the Laws of the United States which shall
      be made in Pursuance thereof; and all Treaties made, or which
      shall be made, under the Authority of the United States, shall be
      the supreme Law of the Land; and the Judges in every State shall
      be bound thereby, any Thing in the Constitution or Laws of any
      State to the Contrary notwithstanding.
U.S. Const. Art. VI, cl. 2.
                 METOYER v. SCREEN ACTORS GUILD                  13177
   At the court’s request, the parties then filed supplemental
briefs on preemption and on whether the state trial judge’s
ruling was binding. In her supplemental brief, Metoyer argued
against preemption. She stated, however, that:

       In response to the court’s question during oral argu-
       ment as to why Plaintiff still needs the state law
       claims along with the federal claims, Dr. Heisser
       Metoyer is prepared to dismiss her state FEHA
       claims and proceed to trial on the 42 U.S.C. section
       1981 causes of action.

(Emphasis added.)10 Based on this statement, the district court
held that Metoyer consented to dismissal of her FEHA claims.

   We have previously upheld an “unqualified oral stipulation
of dismissal made in open court” as effective to consent to
judgment on claims. See Eitel v. McCool, 782 F.2d 1470,
1473 (9th Cir. 1986). However, for the dismissal to be effec-
tive, it must unqualified and unambiguous. Here, Metoyer’s
statement in her brief is too ambiguous to constitute such con-
sent. The statement “is prepared to dismiss” may mean some-
thing other than she is dismissing. It may reasonably mean
she is awaiting some consideration for such dismissal; it may
equally mean a preliminary, not final, decision.

  Although Metoyer’s FEHA and § 1981 claims are largely
parallel, the Guild asserted that 29 U.S.C. § 504 (“§ 504”)
barred Metoyer’s § 1981 claims, an assertion that does not
necessarily bar Metoyer’s FEHA claims. Therefore, one rea-
sonable interpretation of Metoyer’s statement was that she
was prepared to dismiss the FEHA claims, if the court deter-
mined that § 504 did not bar her federal claims from proceed-
ing to trial. Further, Metoyer requested that the court deny
judgment in its entirety and argued extensively against pre-
  10
    As part of this same motion, Metoyer requested the court to deny the
Guild’s motion for summary judgment in its entirety.
13178             METOYER v. SCREEN ACTORS GUILD
emption of her FEHA claims in the same brief. Thus, the dis-
trict court erred in interpreting Metoyer’s statement as
stipulating to dismissal of her FEHA claims.

   [18] California courts apply the Title VII framework to
claims brought under FEHA. See Guz v. Bechtel Nat. Inc., 24
Cal. 4th 317, 354 (2000) (“Because of the similarity between
state and federal employment discrimination laws, California
courts look to pertinent federal precedent when applying our
own statutes.”). We therefore reverse the district court’s grant
of summary judgment on the state law discrimination and
retaliation claims for the same reasons we reverse on the fed-
eral law discrimination and retaliation claims.

                        IV.    CONCLUSION

   For the foregoing reasons, we AFFIRM summary judg-
ment on Metoyer’s § 1981 claim of discriminatory failure to
confirm as National Director of Affirmative Action. We
REVERSE summary judgment on the federal and state dis-
crimination and retaliation claims because Metoyer has raised
a triable issue of fact as to all of these claims.

  AFFIRMED IN PART; REVERSED IN PART. Each
party is to bear its costs on appeal.


BEA, Circuit Judge, concurring in part and dissenting in part:

   Metoyer sued the Screen Actors Guild (“the Guild”)1 for
race discrimination and retaliation after the Guild fired her.2
  1
    Also named as Defendants were John McGuire, the Guild’s Acting
Executive National Director, and Leonard Chassman, the Guild’s Holly-
wood Executive Director. For the sake of clarity, I will refer to all Defen-
dants collectively as “the Guild.”
  2
    Metoyer did not bring a Title VII action for discrimination in employ-
ment. She did not file a claim with the Equal Employment Opportunity
Commission (“EEOC”). She sued only under 42 U.S.C. § 1981, which
provides a more generous avenue of relief than Title VII. See infra note
11.
                METOYER v. SCREEN ACTORS GUILD                  13179
She was fired. But only after she admitted to the Guild she
had doled out over $30,000 of Guild funds to her business
partners, friends, and family through a pretty simple, but
effective, scheme. She admitted she fabricated bogus invoices
and concocted inexistent events. She authorized Guild pay-
ments for these phoney items to the nice-sounding Loyola
Marymount University (“LMU”). There, a compliant LMU
employee would hold the Guild money till Metoyer gave
instructions for disbursement to her business partners, friends,
and family.

   LMU was a cut-out. The paper trail at the Guild would
show that only LMU had received the funds in payment for
invoices or for events. LMU’s records would show who the
real recipients were, but those records were not on the Guild’s
premises.

   In a misguided opinion, the majority rejects the Guild’s
defense that notwithstanding the validity of Metoyer’s racial
discrimination claims, the Guild had a perfect right to fire her,
and would have done so, because of Metoyer’s theft of its
funds. That is, the majority rejects the “mixed-motive
defense” in a § 1981 discrimination action.

  In reversing summary judgment for the Guild, the majority
got the law and the facts wrong.

  The Law. The Civil Rights Act of 1991 (“1991 CRA”)3
amended Title VII to make the mixed-motive defense only a
defense to damages, but not to liability, in discrimination
actions brought under “section 2000e-2(m) of this title.” 42
U.S.C. § 2000e-5(g)(2)(B). The majority holds § 2000e-
5(g)(2)(B) somehow applies to actions brought under § 1981.
This, in spite of the fact that § 1981 was also amended as to
other particulars with the 1991 CRA, but no limitation to the
mixed-motive defense was enacted in § 1981.
  3
   Pub. L. No. 102-166, 105 Stat. 1071 (effective Nov. 21, 1991).
13180             METOYER v. SCREEN ACTORS GUILD
   In effect, the majority opinion amends § 2000e-5(g)(2)(B)
to make its limitations on the mixed-motive defense applica-
ble to actions brought “under section 2000e-2(m) or section
1981 of this title.” This violates the fundamental provision of
the United States Constitution that vests legislative power in
the Congress of the United States.4

   The majority opinion’s amendment of § 2000e-5(g)(2)(B)
also creates an inter-circuit split with the Eleventh Circuit.
Mabra v. United Food & Commercial Workers Local Union
No. 1996, 176 F.3d 1357, 1357-58 (11th Cir. 1999). Such
amendatory reading of § 2000e-5(g)(2)(B) also departs from
the wise reasoning of other sister circuits that have held
§ 2000e-5(g)(2)(B), by its plain language, is inapplicable to
actions brought under the Age Discrimination in Employment
Act, the False Claims Act, and 42 U.S.C. § 1983.5

   The Facts. One cannot get away from the fact that Metoyer
gave the Guild the motive for her firing by admitting fabrica-
tion of invoices, payment of Guild funds in direct violation of
undisputed Guild policies, and total lack of documentation for
any services rendered in supposed exchange for the Guild
funds defalcated by her. There simply is no triable issue that
she pilfered the Guild’s funds. Henceforth, at least in the
Ninth Circuit, employers will be forced to go to trial for ter-
minating a thieving employee, so long as the employee makes
a colorable claim that a potentially discriminatory motive
played a role in the employer’s action.
  4
    U.S. Const., art. I., sec.1.
  5
    Inexplicably, the majority opinion does not apply the limitations on the
mixed-motive defense to retaliation actions brought under § 2000e-3 of
Title VII, upon the common sense ground that the limitations apply only
to “actions brought under section 2000e-2(m) of this title.” § 2000e-
5(g)(2)(B). It is difficult to fathom why the limitation does not apply to
a statute just a subsection away because it is not named in the limitation,
but does apply to a statute in another section of the United States Code,
similarly not named. See infra Part I.C.
               METOYER v. SCREEN ACTORS GUILD              13181
   Unlike the majority, I think that an amendment to one stat-
ute cannot sub silentio rewrite another. Unlike the majority,
I think there is no triable issue that the Guild would have fired
Metoyer for theft and fraud even in the absence of a discrimi-
natory motive. I concur in Part III.B.1 of the majority opinion
affirming the district court’s grant of summary judgment for
the Guild on Metoyer’s discriminatory breach of contract
claim. From the rest of the majority opinion reversing the dis-
trict court’s grant of summary judgment, I respectfully dis-
sent.

                               I.

   The crux of this case then, is: (1) whether the mixed-motive
defense remains a complete defense to § 1981 actions after
the enactment of the 1991 CRA; and (2) if so, whether a tri-
able issue of fact exists as to the Guild’s decision to terminate
Metoyer for wrongfully giving over $30,000 of Guild funds
to friends, family, and business partners, and falsifying
invoices to cover up her tracks.

                               A.

   The Supreme Court first recognized the mixed-motive
defense to Title VII discrimination actions in Price Water-
house v. Hopkins, 490 U.S. 228 (1989). Hopkins sued Price
Waterhouse under Title VII, claiming Price Waterhouse dis-
criminated against her on the basis of gender in not proposing
her for partnership after her candidacy was put on hold. Id. at
231-32. The district court found that Price Waterhouse’s deci-
sion was based partly on impermissible gender stereotyping
and partly on the legitimate reason that Hopkins had an abra-
sive interpersonal style. Id. at 236-37. The Supreme Court
held an employer’s mixed motive in making an employment
decision can be a complete defense to liability: “[O]nce a
plaintiff in a Title VII case shows that gender played a moti-
vating part in an employment decision, the defendant may
avoid a finding of liability only by proving that it would have
13182             METOYER v. SCREEN ACTORS GUILD
made the same decision even if it had not allowed gender to
play such a role.” Id. at 244-45 (footnote omitted). This
defense became known as the “mixed-motive defense.” Under
Price Waterhouse, the mixed-motive defense was a complete
bar to Title VII liability if the defendant proved, by a prepon-
derance of the evidence, that it would have made the same
employment decision absent the discriminatory motive. Id. at
252-53.

   At the time of the Price Waterhouse decision, every circuit
to address the question, including the Ninth, had applied the
same standards for liability to Title VII and § 1981. “Title VII
and section 1981 are overlapping but independent remedies
for racial discrimination in employment. . . . The same stan-
dards are used to prove both claims . . . and facts sufficient
to give rise to one are sufficient to give rise to the other.”
Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985)
(citations omitted).6 Thus, with the Supreme Court’s decision
in Price Waterhouse, the mixed-motive defense also became
an affirmative defense to actions brought under § 1981. See
Odima v. Westin Tucson Hotel Co., 991 F.2d 595, 601-02 (9th
Cir. 1993) (reversing both Title VII and § 1981 judgments for
the plaintiff based on the district court’s failure, inter alia, to
consider the mixed-motive defense); Bains LLC v. Arco Prod-
ucts Co., 405 F.3d 764, 772 (9th Cir. 2005) (rejecting the
defendant’s mixed-motive defense to a § 1981 claim for lack
of evidence).7 Indeed, even the majority concedes that
  6
     See also Lopez v. S.B. Thomas, Inc., 831 F.2d 1184 (2nd Cir. 1987)
(applying the McDonnell Douglas framework from Title VII case law to
analyze a § 1981 action); Lewis v. Univ. of Pittsburgh, 725 F.2d 910, 915
n.5 (3rd Cir. 1983) (holding § 1981 and Title VII actions require the same
elements of proof and collecting authority from the Second, Fourth, Fifth,
and Eighth Circuits).
   7
     See also Pulliam v. Tallapoosa County Jail, 185 F.3d 1182, 1184 (11th
Cir. 1999) (holding the mixed-motive defense is an affirmative defense to
liability in § 1981 actions); Thomas v. Denny’s, Inc., 111 F.3d 1506, 1511-
12 (10th Cir. 1997) (holding it was error for the district court to reject a
                  METOYER v. SCREEN ACTORS GUILD                     13183
because the same standards are used to prove both Title VII
and § 1981 claims, the mixed-motive defense became a
defense to § 1981 actions before the 1991 CRA’s enactment.8

mixed-motive instruction in a § 1981 case); Hargett v. Nat’l Westminster
Bank, USA, 78 F.3d 836, 840-41 (2nd Cir. 1996) (holding a Price Water-
house mixed-motive instruction is proper in a § 1981 action if “there is
evidence to show that an employment determination was the product of a
mixture of legitimate and illegitimate motives” (quotation marks and cita-
tions omitted)); Williams v. Fermenta Animal Health Co., 984 F.2d 261,
264-65 (8th Cir. 1993) (holding the district court gave a proper mixed-
motive instruction for plaintiff’s claims under § 1981 and Title VII); New
Burnham Prairie Homes, Inc. v. Vill. of Burnham, 910 F.2d 1474, 1483
(7th Cir. 1990) (holding a mixed-motive instruction is proper in a claim
brought under §§ 1981 and 1982).
   8
     The majority asserts, however, that at the time of the 1991 CRA’s
enactment, the mixed-motive defense to § 1981 was a defense only to
damages, but not to liability. To support this assertion, the majority relies
on a number of Ninth Circuit opinions that predate the Supreme Court’s
decision in Price Waterhouse and that apply the mixed-motive defense
only to damages, but not to liability, in Title VII actions.
   Nevertheless, Price Waterhouse, which was decided before the 1991
CRA’s enactment, changed the legal landscape for the mixed-motive
defense. After Price Waterhouse, the mixed-motive defense became a
complete bar to liability, not merely a defense to damages. Price Water-
house, 490 U.S. at 244-45 (“[O]nce a plaintiff in a Title VII case shows
that gender played a motivating part in an employment decision, the
defendant may avoid a finding of liability . . . by proving that it would
have made the same decision even if it had not allowed gender to play
such a role.” (emphasis added) (footnote omitted)).
   The fact that Price Waterhouse was a Title VII decision is of no mate-
rial consequence. At the time of the Price Waterhouse decision, we were
defining the liability standards under § 1981 by reference to Title VII case
law. See Lowe, 775 F.2d at 1010. As a corollary, and as the majority con-
cedes, Title VII case law on the mixed-motive defense also controlled the
mixed-motive defense under § 1981. Thus, when Title VII case law on the
mixed-motive defense was altered by Price Waterhouse, so was the
mixed-motive defense under § 1981. Consequently, the mixed-motive
defense became a complete bar to liability in § 1981 actions as well. See
supra note 7 and accompanying text (citing authorities from the Ninth Cir-
cuit as well as from the Second, Seventh, Eighth, Tenth, and Eleventh Cir-
cuits).
13184          METOYER v. SCREEN ACTORS GUILD
   The question then is what effect, if any, the 1991 CRA had
on the applicability of the mixed-motive defense as a com-
plete bar to liability under § 1981.

                              B.

   I begin my interpretation, as I must, with the text of the
1991 CRA. And “where, as here, the words of the statute are
unambiguous, the judicial inquiry is complete.” Desert Pal-
ace, Inc. v. Costa, 539 U.S. 90, 98 (2003) (citations and quo-
tation marks omitted). At issue in this case are two new
provisions the 1991 CRA added to Title VII, but not to
§ 1981. The first provision establishes the “mixed-motive”
ground for Title VII liability. Id. at 94. It states:

    Except as otherwise provided in this subchapter, an
    unlawful employment practice is established when
    the complaining party demonstrates that race, color,
    religion, sex, or national origin was a motivating fac-
    tor for any employment practice, even though other
    factors also motivated the practice.

42 U.S.C. § 2000e-2(m). The second provision allows a
defendant to limit the plaintiff’s remedies, but not completely
avoid liability, in an action brought under § 2000e-2(m) if the
defendant can prove a mixed-motive defense:

    On a claim in which an individual proves a violation
    under section 2000e-2(m) of this title and a respon-
    dent demonstrates that the respondent would have
    taken the same action in the absence of the imper-
    missible motivating factor, the court—

    (i) may grant declaratory relief, injunctive relief
    (except as provided in clause (ii)), and attorney’s
    fees and costs demonstrated to be directly attribut-
    able only to the pursuit of a claim under section
    2000e-2(m) of this title; and
                   METOYER v. SCREEN ACTORS GUILD                13185
      (ii) shall not award damages or issue an order
      requiring any admission, reinstatement, hiring, pro-
      motion, or payment, described in subparagraph (A).

42 U.S.C. § 2000e-5(g)(2)(B) (emphasis added). Thus,
§ 2000e-5(g)(2)(B) modified Price Waterhouse insofar as the
Price Waterhouse Court recognized the mixed-motive defense
as a complete bar to liability. See Estate of Reynolds v. Mar-
tin, 985 F.2d 470, 475 n.2 (9th Cir. 1993). Under the new
§ 2000e-5(g)(2)(B), the mixed-motive defense is a defense
only to damages for an action under § 2000e-2(m), but not to
liability for prospective equitable relief and attorneys’ fees.

   Metoyer’s case requires us to decide what effect § 2000e-
5(g)(2)(B) has on an action brought under § 1981. The
answer: Absolutely none. Congress could not have been more
explicit. Section 2000e-5(g)(2)(B) applies only “[o]n a claim
in which an individual proves a violation under section
2000e-2(m) of this title.” Section 2000e-5(g)(2)(B) does not
state that it applies “[o]n a claim in which an individual
proves a violation under section 2000e-2(m) or section 1981
of this title.” Yet the majority, after a convoluted legal analy-
sis, amends § 2000e-5(g)(2)(B) to say just that.

   The majority’s judicial amendment is even more difficult to
understand under any known precept of statutory interpreta-
tion because Congress also amended § 1981 in the 1991 CRA.
See Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.
1071, 1071-72 (1991).9 Absent from the 1991 CRA’s amend-
  9
   Section 101 of the 1991 CRA states:
      Section 1977 of the Revised Statutes (42 U.S.C. 1981) is
      amended—
      (1) by inserting “(a)” before “All persons within”; and
      (2) by adding at the end the following new subsections:
      “(b) For purposes of this section, the term ‘make and enforce
      contracts’ includes the making, performance, modification, and
13186            METOYER v. SCREEN ACTORS GUILD
ments to § 1981, however, is any limitation on the applicabil-
ity of the mixed-motive defense to § 1981. It is well-
established that if “Congress includes particular language in
one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts inten-
tionally and purposely in the disparate inclusion or exclu-
sion.” Russello v. United States, 464 U.S. 16, 23 (1983)
(quotation marks and citations omitted). Where Congress
intended to limit the mixed-motive defense, it did so expressly
and only as to certain claims (damages) but not others (pro-
spective equitable relief and attorneys’ fees). See § 2000e-
5(g)(2)(B). This is compelling evidence that Congress’s omis-
sion of such a limitation in § 1981, which Congress also
amended in the very same Act, was intentional and not acci-
dental.

   It is also a “cardinal principle of statutory construction”
that we must “give effect, if possible, to every clause and
word of a statute.” Duncan v. Walker, 533 U.S. 167, 174
(2001) (quotation marks and citations omitted). We must be
“reluctan[t] to treat statutory terms as surplusage.” Id. (quota-
tion marks and citations omitted). In remarkable disregard of
this fundamental principle, the majority’s application of
§ 2000e-5(g)(2)(B) to § 1981 renders the following words in
§ 2000e-5(g)(2)(B) entirely superfluous: “On a claim in which
an individual proves a violation under section 2000e-2(m) of
this title . . .”10 If this provision also applies to § 1981, it is

    termination of contracts, and the enjoyment of all benefits, privi-
    leges, terms, and conditions of the contractual relationship.
    “(c) The rights protected by this section are protected against
    impairment by nongovernmental discrimination and impairment
    under color of State law.”
Id. at 1071-72.
   10
      The majority’s interpretation of § 2000e-5(g)(2)(B) also renders
another part of that provision superfluous. Section 2000e-5(g)(2)(B)(i)
states that when the defendant successfully asserts a mixed-motive
                  METOYER v. SCREEN ACTORS GUILD                     13187
superfluous because its language limits the provision to
claims for the violation of § 2000e-2(m). The only interpreta-
tion that would not render any part of § 2000e-5(g)(2)(B)
superfluous is the one that makes that provision applicable
only to actions brought under § 2000e-2(m).

   Under its clear statutory language, § 2000e-5(g)(2)(B) has
no applicability to § 1981 actions. See Kaiser Aluminum &
Chem. Corp. v. Bonjorno, 494 U.S. 827, 835 (1990) (“Absent
a clearly expressed legislative intention to the contrary, [the
statutory] language must ordinarily be regarded as conclu-
sive.”); cf. Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454,
460-61 (1975) (holding Title VII’s administrative complaint
requirements apply only to Title VII actions and do not apply
to § 1981 claims). Rarely does Congress declare its intent
with such specificity. Instead of embracing that intent, the
majority rejects it, without stating what in the world § 2000e-
5(g)(2)(B) would mean if it does not limit the mixed-motive
defense only as to § 2000e-2(m) claims.11

defense, the court may not award damages, but may award, inter alia, “at-
torney’s fees and costs demonstrated to be directly attributable only to the
pursuit of a claim under section 2000e-2(m) of this title.” Id. (emphasis
added). While the majority does not expressly address whether attorney’s
fees will be available to a plaintiff in a § 1981 action when the defendant
proves the mixed-motive defense, this conclusion is implicit in its holding
that § 2000e-5(g)(2)(B) is “incorporated” into § 1981. As a result, the
majority also renders superfluous the portion of § 2000e-5(g)(2)(B)(i) that
allows the recovery of attorney’s fees attributable “only to the pursuit of
a claim under section 2000e-2(m) of this title.”
   11
      I am loath to speculate as to Congress’s reasons for limiting the
mixed-motive defense in Title VII discrimination actions, but not in
§ 1981 actions. Nevertheless, for those who look beyond the statutory text
for congressional intent, I note that § 1981 provides a much more attrac-
tive avenue of relief to plaintiffs than does Title VII. First, Title VII
applies only to employers with fifteen or more employees, whereas § 1981
has no such threshold requirement. 42 U.S.C. § 2000e(b). Second, Title
VII requires the plaintiff to exhaust administrative remedies, such as filing
a claim with the EEOC (a step that Metoyer did not take), before seeking
13188            METOYER v. SCREEN ACTORS GUILD
    The majority reasons that because our decision in Fonseca
held “the same legal principles” apply to § 1981 and Title VII
actions, Fonseca’s holding “incorporated the amended Title
VII into the § 1981 analysis such that the mixed motive
defense to liability is no longer available under § 1981.” The
majority’s reliance on Fonseca is entirely misplaced. Fonseca
had nothing to do with the mixed-motive defense or with the
1991 CRA’s amendments to Title VII.12 In Fonseca, we
merely reaffirmed what we had been holding for two decades:
the McDonnell Douglas burden-shifting framework from Title
VII case law can also be used to analyze § 1981 actions. Fon-
seca v. Sysco Food Servs. of Ariz., 374 F.3d 840, 847-50 (9th
Cir. 2004) (citing Lowe v. City of Monrovia, 775 F.2d 998
(9th Cir. 1985)). The majority takes out of context Fonseca’s
holding as to the McDonnell Douglas framework and extends
it to a provision, § 2000e-5(g)(2)(B), which the Fonseca court
did not even cite. The majority’s quite original, but quite erro-
neous, interpretation of § 2000e-5(g)(2)(B) is bad enough. But
the majority compounds this error by stretching the language
quoted from Fonseca outside the context in which the words
were used.

                                   C.

  In addition to circumventing the plain language of § 2000e-
5(g)(2)(B), the majority’s holding conflicts with the decisions

a private action for damages, whereas § 1981 has no such requirement. 42
U.S.C. § 2000e-5(f). Third, there are limits on compensatory and punitive
damages recoverable under Title VII, whereas no such limits exist for
damages under § 1981. 42 U.S.C. § 1981a(b)(3). Finally, Title VII covers
only employment discrimination, but § 1981 is not so limited. Because
§ 1981 provides a more generous avenue for relief, Congress may have
wanted to retain the mixed-motive defense as a complete bar to liability
under § 1981, while limiting its applicability only to the more limited
damages recoverable under Title VII.
   12
      Indeed, the word “motive,” let alone “mixed motive,” does not even
appear in the Fonseca opinion.
                 METOYER v. SCREEN ACTORS GUILD                    13189
of many of our sister circuits. First, the majority creates a
direct circuit split with the Eleventh Circuit, which correctly
interpreted § 2000e-5(g)(2)(B) to be inapplicable to § 1981.
Mabra v. United Food & Commercial Workers Local Union
No. 1996, 176 F.3d 1357, 1357-58 (11th Cir. 1999). The
Mabra court reasoned that the plain language of § 2000e-
5(g)(2)(B) makes no reference to § 1981. Id. The court found
this omission to be particularly telling where the 1991 CRA
also amended § 1981 to add two new subsections, none of
which limit the applicability of the mixed-motive defense to
§ 1981 actions. Id.13

   Second, at least seven of our sister circuits have concluded
that § 2000e-5(g)(2)(B), which by its express language
applies only to Title VII discrimination claims under § 2000e-
2(m), is inapplicable even to Title VII retaliation claims
under § 2000e-3. See Matima v. Celli, 228 F.3d 68, 81 (2nd
Cir. 2000) (so holding and collecting cases from the First,
Third, Fourth, Seventh, Eighth, and Eleventh Circuits). These
courts hold § 2000e-5(g)(2)(B)’s plain language compels this
conclusion even though, like in § 1981 actions, courts have
“generally borrowed from [Title VII] discrimination law in
determining the burdens and order of proof in [Title VII]
retaliation cases.” Woodson v. Scott Paper Co., 109 F.3d 913,
934 (3rd Cir. 1997). Indeed, even the majority opinion holds
§ 2000e-5(g)(2)(B) is inapplicable to Title VII retaliation
actions, and by extension, to § 1981 retaliation actions.

   In so holding, the majority relies on our decision in Stegall
v. Citadel Broadcasting Co., 350 F.3d 1061 (9th Cir. 2004).
In Stegall, which was decided after the 1991 CRA’s enact-
  13
    The majority rejects Marba as relying on “the faulty premise” that the
mixed-motive defense was a complete defense to liability under § 1981
before the 1991 CRA’s enactment. For the reasons outlined supra note 8,
the majority is incorrect. With the Supreme Court’s decision in Price
Waterhouse and before the 1991 CRA’s enactment, the mixed-motive
defense became a complete defense to liability under § 1981 actions as
well.
13190             METOYER v. SCREEN ACTORS GUILD
ment, we assumed the mixed-motive defense continues to be
a complete bar to liability in a Title VII retaliation action
under § 2000e-3. Id. at 1068. The Stegall court did not explain
why the 1991 CRA did not alter the mixed-motive analysis in
a Title VII retaliation action, perhaps because that explanation
is very straightforward. As discussed above, § 2000e-
5(g)(2)(B), which limits the applicability of the mixed-motive
defense, only applies to a Title VII discrimination claim under
§ 2000e-2(m). By its plain language, it is inapplicable to any
other provision, including a Title VII retaliation claim under
§ 2000e-3. Thus, the Stegall court was quite correct to assume
the mixed-motive defense continues to be a complete bar to
liability in a Title VII retaliation action. Today, the majority
extends Stegall’s holding to § 1981 retaliation actions (but
not to § 1981 discrimination actions) and holds mixed motive
is a complete defense to liability under a § 1981 retaliation
claim.

   The majority’s decision to re-affirm Stegall, but extend
§ 2000e-5(g)(2)(B) to § 1981 discrimination actions, leads to
some puzzling results.14 First, under the majority’s holding,
the mixed-motive limitations to Title VII discrimination
claims, while inapplicable to Title VII retaliation claims, are
applicable to § 1981 discrimination claims. It would seem to
defy logic to apply the mixed-motive limitations under
§ 2000e-5(g)(2)(B) to a § 1981 action, which is situated in a
wholly different part of the United States Code, but not to a
Title VII retaliation claim under § 2000e-3, which is, after all,
a Title VII claim itself. Second, there is no reason why mixed
motive should be a complete defense to liability in a § 1981
retaliation action, but not in a § 1981 discrimination action.
There is nothing in § 1981 that supports this distinction.
  14
     The majority’s conclusion that mixed motive is a complete defense to
liability for § 1981 retaliation actions also undermines its earlier conclu-
sion that the mixed-motive defense was only a defense to damages, but not
to liability, under § 1981 when the 1991 CRA was enacted. See supra note
8.
                 METOYER v. SCREEN ACTORS GUILD                  13191
   Third, the majority’s extension of § 2000e-5(g)(2)(B) to
§ 1981 implicitly parts company with our sister circuits that
interpret § 2000e-5(g)(2)(B) to be inapplicable to claims
brought under the Age Discrimination in Employment Act
(“ADEA”). See Baqir v. Principi, 434 F.3d 733, 745 n.13 (4th
Cir. 2006); Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506,
512 n.3 (3rd Cir. 2004); Lewis v. Young Men’s Christian
Ass’n, 208 F.3d 1303, 1305 (11th Cir. 2000). Even though
ADEA actions, like § 1981 actions, are governed by Title VII
case law, our sister circuits follow the plain language of
§ 2000e-5(g)(2)(B) and hold the limitations to the mixed-
motive defense do not apply to ADEA claims. Lewis, 208
F.3d at 1304-05.

   Finally, the majority implicitly departs from our sister cir-
cuits which hold the plain language of § 2000e-5(g)(2)(B) is
inapplicable to yet other sections of the United States Code.
See Norbeck v. Basin Elec. Power Coop., 215 F.3d 848, 852
(8th Cir. 2000) (holding the 1991 CRA did not alter the
mixed-motive defense under the False Claims Act and the
Price Waterhouse mixed-motive analysis governs the claim);
Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1084 n.5,
1085 (11th Cir. 1996) (holding § 2000e-5(g)(2)(B) is inappli-
cable to § 1983 actions).15

   Thus, I would join our sister circuits in holding § 2000e-
5(g)(2)(B) is inapplicable to any claim other than a Title VII
discrimination action brought under § 2000e-2(m) . . . just as
it says.
  15
    The Eighth Circuit holds § 2000e-5(g)(2)(B) does apply to actions
brought under the Americans with Disabilities Act (“ADA”). See Pedigo
v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995). Unlike
§ 1981, however, the text of the ADA expressly incorporates the “powers,
remedies, and procedures” of Title VII, including § 2000e-5. See 42
U.S.C. § 12117(a).
13192             METOYER v. SCREEN ACTORS GUILD
                                   II.

   Having concluded § 2000e-5(g)(2)(B) has no impact on
§ 1981, I now turn to the application of the law to the facts
of this case. Because § 2000e-5(g)(2)(B) did not alter the
mixed-motive analysis under § 1981, I must analyze this case
under the Price Waterhouse standard, pursuant to which an
employer’s mixed motive in making an employment decision
remains a complete defense to liability to a § 1981 claim.
Accordingly, if the Guild can establish no triable issue of fact
exists that it would have fired Metoyer in the absence of any
discriminatory motive, the district court’s summary judgment
for the Guild must be affirmed.

   Metoyer asserts three § 1981 claims in her complaint: (1)
discriminatory breach of contract for failing to confirm her as
the National Director of Affirmative Action; (2) wrongful ter-
mination; and (3) retaliation. The majority affirms the district
court’s summary judgment on the discriminatory breach of
contract claim, and I join that holding. However, I disagree
with the majority’s holding on the retaliation and wrongful
termination claims, which reverses the district court’s grant of
summary judgment for the Guild. I would affirm the district
court’s summary judgment on all three claims.16
   16
      The majority chooses not to use the McDonnell Douglas framework
in conducting its analysis. Instead, the majority relies on our decision in
McGinest v. GTE Service Corp., 360 F.3d 1103, 1122 (9th Cir. 2004), to
forego the McDonnell Douglas burden-shifting framework. In McGinest,
we held “when responding to a summary judgment motion . . . [the plain-
tiff] may proceed by using the McDonnell Douglas framework, or alterna-
tively, may simply produce direct or circumstantial evidence
demonstrating that a discriminatory reason more likely than not motivated
[the employer].” Id. While the majority is correct that “ ‘nothing compels
the parties to invoke the McDonnell Douglas presumption,’ ” id. (citations
omitted), where, as here, the plaintiff relied exclusively on the McDonnell
Douglas framework before the district court, we ought not change to a dif-
ferent standard on appellate review for no apparent reason. [SER 65:7-
10]. Indeed, we have previously held:
                  METOYER v. SCREEN ACTORS GUILD                     13193
                                    A.

   The majority holds the district court erred in granting sum-
mary judgment on the wrongful termination claim because
Metoyer presented direct and circumstantial evidence demon-
strating that the Guild harbored discriminatory animus toward
African-Americans. I disagree. I would affirm the district
court’s grant of summary judgment for the Guild and hold
Metoyer failed to establish a prima facie case of wrongful ter-
mination based on discrimination.

   To establish a prima facie case of discrimination, Metoyer
must show (1) she belongs to a protected class, (2) she was
qualified for the position, (3) she was subjected to an adverse
employment action, and that (4) similarly situated individuals
outside her protected class were treated more favorably. Ara-
gon v. Republic Silver State Disposal Co., 292 F.3d 654, 658
(9th Cir. 2002).

   Metoyer fails to establish the fourth element of her prima
facie case (“disparate treatment”). To attempt to establish dis-
parate treatment, Metoyer offers solely her own declaration.
Therein, Metoyer declares she told John McGuire about the
misuse of the Industry Advancement and Cooperation Fund
(“IACF”) grants by Shawna Brakefield, Sharon Jensen, and
Paul Ward, but they were neither investigated nor disciplined.
[ER 38:21-23].

    Ordinarily, we decline to consider arguments raised for the first
    time on appeal. This rule serves to ensure that legal arguments
    are considered with the benefit of a fully developed factual
    record, offers appellate courts the benefit of the district court’s
    prior analysis, and prevents parties from sandbagging their oppo-
    nents with new arguments on appeal.
Dream Palace v. County of Maricopa, 384 F.3d 990, 1005 (9th Cir. 2004)
(citations omitted). Neither Metoyer nor the majority asserts any justifica-
tion for departing from this general rule. Therefore, I conduct my analysis
using the McDonnell Douglas framework.
13194             METOYER v. SCREEN ACTORS GUILD
   As an initial matter, Metoyer’s declaration is insufficient
because it does not establish Brakefield, Jensen, and Ward
were outside her protected class. The declaration neither iden-
tifies their respective races nor states they are all not African
American.

   Even if I were to assume Brakefield, Jensen, and Ward are
Caucasian, as Metoyer’s briefs assert, Metoyer’s declaration
is insufficient because it does not show Brakefield, Jensen,
and Ward were “similarly situated [to Metoyer] . . . in all
material respects.” Moran v. Selig, 447 F.3d 748, 755 (9th
Cir. 2006); Vasquez v. County of L.A., 349 F.3d 634, 641 (9th
Cir. 2004) (holding “individuals are similarly situated when
they have similar jobs and display similar conduct”); id. at
641 n.17 (citing Hollins v. Atlantic Co., Inc., 188 F.3d 652,
659 (6th Cir. 1999) (holding that, to be similarly situated, an
employee must have the same supervisor, be subject to the
same standards, and have engaged in the same conduct)).
First, Metoyer was a grant administrator, whereas according
again to Metoyer, Brakefield, Jensen, and Ward were grant
recipients. [ER 38:23 (“these three grant recipients”)].
Metoyer’s declaration does not identify who, if anyone, at the
Guild administered the Brakefield, Jensen, and Ward grants.
Second, unlike Metoyer, who was a Guild employee, Brake-
field and Ward were “independent contractors;”17 Jensen is
not identified as either a Guild employee or an independent con-
tractor.18 [ER 38:21-2]. Third, Metoyer’s declaration does not
establish or even claim Brakefield, Jensen, and Ward (1) vio-
lated the Guild’s strict policy prohibiting Guild employees
from receiving compensation of any kind from IACF funds,
or (2) fabricated invoices that had the effect of concealing the
  17
      Metoyer’s declaration does not indicate whether Brakefield and Ward
were independent contractors of the Guild or of the IACF.
   18
      Of course, as on all elements of a disparate treatment case, the claim-
ant has the burden of showing others were “similarly situated” before she
can establish she was treated differently. This burden, Metoyer utterly fails
to carry.
                   METOYER v. SCREEN ACTORS GUILD                       13195
true recipient of IACF funds from the Guild. Finally, the dec-
laration shows that in the case of Brakefield, Jensen, and
Ward, the Guild was confronted only with suspicions,
whereas in Metoyer’s case, it was confronted with invoices
admitted by Metoyer to have been fabricated from whole
cloth by Metoyer personally, or her PRC business partner,
Rachelle Bolding.

   Accordingly, Metoyer failed to make out a prima facie case
of wrongful termination because she failed to establish simi-
larly situated individuals outside her protected class were
treated more favorably.19 Thus, I would affirm the district
court’s grant of summary judgment for the Guild on
Metoyer’s wrongful termination claim.

                                      B.

   Metoyer’s retaliation claim survives the three-step McDon-
nell Douglas analysis.20 Nevertheless, I disagree with the
majority that the Guild has not presented sufficient evidence
to support summary judgment based on the mixed-motive
defense. I would affirm the district court’s summary judgment
for the Guild on the retaliation claim because no triable issue
of fact exists as to the Guild’s mixed-motive defense.
  19
      Even if Metoyer established a prima facie case of wrongful termina-
tion, the Guild would still be entitled to summary judgment because no tri-
able issue of fact exists as to the Guild’s mixed-motive defense. See infra
Part II.B.
   20
      First, the district court held plaintiff established a prima facie case of
retaliation, which the Guild does not appeal. Second, the Guild met its
burden of asserting a nondiscriminatory reason for Metoyer’s termination,
namely, Pricewaterhouse Cooper’s (“PwC”) conclusions that Metoyer
transferred the Guild’s funds to friends, family, and business partners, and
falsified invoices. Third, Metoyer has established a triable issue of fact as
to pretext because there is a nexus sufficient for purposes of summary
judgment, albeit a tenuous one, between Leonard Chassman’s discrimina-
tory remarks and Metoyer’s termination.
13196           METOYER v. SCREEN ACTORS GUILD
   Under the mixed-motive defense, an employer can avoid
liability by establishing that it would have made the same
decision absent any discriminatory motive. See Price Water-
house, 490 U.S. at 244-45. Even though the majority is cor-
rect that the mixed-motive inquiry is a factual one, this case
presents an unusual set of facts warranting summary judgment
for the Guild.

   What makes this case fit for summary adjudication is that
the underlying facts of Metoyer’s misconduct are admitted by
Metoyer herself. It is undisputed that the investigation began
when Sofia Banks, a temporary employee at the Guild and an
African-American woman, discovered a suspicious invoice in
Metoyer’s inbox. Metoyer admits this invoice was fabricated.
As Metoyer testified in her deposition, she had her PRC part-
ner, Rachelle Bolding, create the invoice charging the Guild
$10,736 for seven events that never occurred. [See ER 46:92-
94]. Metoyer then signed a check request listing the same
seven events, causing the Guild to transfer $10,736 in Guild
funds to LMU to cover Family Fun Fest expenses. [ER
4:500-01]. LMU then paid a portion of these funds to Celine
Bae, a Guild employee, and to Metoyer’s husband’s produc-
tion company.

   It is also undisputed that when LMU submitted an invoice
to Metoyer for $2,197 in excess Family Fun Fest costs, which
listed Bae and Metoyer’s husband’s company as payees,
Metoyer personally fabricated a bogus invoice on LMU letter-
head (without mention of Bae or Metoyer’s husband) that
charged the Guild’s IACF trust account $2,197 for a reception
in Dr. George Gerbner’s honor.21 Metoyer submitted this
bogus invoice, not the one identifying Bae and Metoyer’s hus-
  21
    No separate event honoring Dr. Gerbner was ever held. Rather,
although acknowledging that Dr. Gerbner was not in attendance, Metoyer
claims Dr. Gerbner was “honored” at the Family Fund Fest. There is no
evidence that Dr. Gerbner even knew he was being “honored” or how he
was “honored.”
                   METOYER v. SCREEN ACTORS GUILD                      13197
band’s company as payees, and a signed check request to the
Guild’s accounting department, causing it to pay $2,197 in
IACF funds to LMU.

   Similarly, it is undisputed that Metoyer caused Peter
Nguyen to receive $5,000 in IACF grant funds for performing
legal research and offering legal advice while he was not a
licensed attorney. It is also undisputed that Nguyen received
this payment while a Guild employee, an apparent22 violation
   22
      Metoyer offers no evidence disputing the following facts that suggest
she fabricated a consulting job in order to supplement Nguyen’s Guild sal-
ary with $5,000 in IACF grant funds after the Guild decided not to meet
Nguyen’s salary demand—which just happened to be $5,000. In 2000,
Nguyen was employed in the Guild’s Special Projects Division. [ER
46:18]. In December 2000, a strike involving the Guild ended and
Nguyen’s position was eliminated. [Id.] Knowing that his position was
coming to an end, Metoyer interviewed Nguyen to be her Executive Asso-
ciate and selected him for the position on December 7, 2000. [Metoyer’s
Declaration; ER 46:21]. Salary negotiations between Jeffery Spencer
(“Spencer”), a recruiter in the Guild’s human resources department, and
Nguyen reached an impasse with Nguyen demanding $55,000 and the
Guild offering $50,000. [ER 46:18]. Shortly thereafter, on December 28,
2000, Metoyer sent Spencer an e-mail stating, “We have a plan.” [ER
46:23].
   Five days later, Nguyen submitted a letter to LMU stating: “At the
behest of Dr. Patricia Heisser-Metoyer of the Screen Actors Guild, I have
rendered legal consultation services in furtherance of the skills bank reor-
ganization project. Please accept this invoice for $5,000 in consideration
for such services.” [ER 46:214]. On January 3, 2001, Nguyen accepted
employment as Metoyer’s Executive Associate with a start date of January
8, 2001, and a starting salary of $50,000. [ER 46:212]. On January 8,
2001, Hope Singer, outside legal counsel for the Guild, met with Metoyer
and the Guild’s in-house counsel, Vicki Shapiro, regarding the need for a
legal opinion on whether it was lawful for the Guild to ask Guild members
to identify their race, nationality, gender, disability, and other characteris-
tics on the Skills Bank questionnaire—the same legal question Nguyen
requested $5,000 in compensation for researching. [ER 52:2-3]. At no
time during this meeting did Metoyer indicate Nguyen had been asked to
research or actually researched this issue. [Id.] Singer researched and ana-
lyzed the issue for two hours and informed Shapiro of her conclusion that
the questionnaire was in full compliance with the law. [Id.] On January 29,
13198            METOYER v. SCREEN ACTORS GUILD
of the Guild’s undisputed policy strictly prohibiting Guild
employees from receiving compensation from IACF funds.
Also undisputed is the fact that Metoyer caused Rachelle
Bolding to receive $20,000 in IACF funds shortly after Bold-
ing left the Guild. From the Guild’s perspective, the payment
to Bolding was particularly egregious because the Guild had
reason to believe Bolding and Metoyer were business partners
in PRC,23 an event planning company.

   These findings of misconduct were the result of an investi-
gation conducted by PwC, a well-respected third-party
accounting firm. PwC was hired by IACF, a separate legal
entity from the Guild. The IACF board voted to retain PwC
to investigate all outstanding grants at a board meeting where
the trustees discussed the need for greater accountability of
grant funds—in general terms and without naming Metoyer.
PwC independently concluded Metoyer made questionable
payments to Bae, Nguyen, Bolding, and Metoyer’s husband’s
production company.

   Metoyer admitted to all of this misconduct when she was
interviewed by two PwC auditors in the presence of her attor-
ney. [ER 73:115]. Thus, the facts underlying Metoyer’s
misconduct—the fabricated invoices, the transfers of funds in
violation of the Guild’s policies, the lack of documentation
for services rendered—are all undisputed. Metoyer contests
only the propriety of the transactions, claiming that she was

2001, Nguyen received $5,000 in IACF funds for legal consultation ser-
vices on the same issue, by happenstance the exact sum the Guild was
unwilling to add to his salary. Of course, no one contends Metoyer had the
authority to overrule Spencer in setting Nguyen’s salary.
   23
      PwC concluded the first initials of Patricia Metoyer, Rachelle Bold-
ing, and Celine Bae make up the name “PRC.” Metoyer admits the “P” in
“PRC” is derived from her first name (Patricia). [ER 38:47-48]. However,
Metoyer disputes she was a business partner in PRC, contending instead
that she acted as a mentor and a “big sister” to Rachelle Bolding and
Celine Bae in PRC’s operations. [Id.]
               METOYER v. SCREEN ACTORS GUILD              13199
authorized to make payments, but does not contest the Guild
strictly prohibits current employees from receiving compensa-
tion in any form from IACF funds.

   After interviewing Metoyer and giving her an opportunity
to explain these questionable transactions, the Guild con-
cluded she failed to provide adequate explanations. There is
no evidence in the record suggesting either PwC’s or the
Guild’s conclusions were not made in good faith.

   Nevertheless, the majority holds three pieces of evidence in
the record undermine the Guild’s mixed-motive defense and
create a triable issue of fact. First, the majority relies on “Me-
toyer’s allegation that other persons engaged in questionable
practices related to IACF funds and faced no disciplinary con-
sequences.” The “other persons” to which the majority refers
are presumably Brakefield, Jensen, and Ward. For the reasons
outlined above in Part II.A, however, Brakefield, Jensen, and
Ward are not similarly situated to Metoyer and do not provide
a valid basis for comparison.

   Further, Brakefield, Jensen, and Ward were not investi-
gated because of Metoyer’s own refusal to cooperate with an
investigation. Following the March 22, 2001, PwC interview
where Metoyer claimed Brakefield, Jensen, and Ward had
engaged in questionable conduct, John McGuire decided to
investigate Metoyer’s allegations. [ER 56:55-6]. Instead of
terminating Metoyer for her theft, McGuire placed her on paid
administrative leave and retained O’Melveny & Myers, then
completely unaffiliated with the Guild, to investigate
Metoyer’s claims. [Id.] Nevertheless, O’Melveny & Myers
was unable to make any findings with respect to Metoyer’s
claims because Metoyer refused to participate in the investi-
gation, “notwithstanding numerous requests that she provide
information regarding any and all matters she wanted investi-
gated.” [Id.] McGuire decided to fire Metoyer only after he
was informed that O’Melveny & Myers was unable to deter-
mine the merits of Metoyer’s allegations due to her refusal to
13200          METOYER v. SCREEN ACTORS GUILD
cooperate. [ER 56:6-7]. Metoyer now asserts, and the major-
ity holds, there is a triable issue of fact as to the Guild’s
mixed-motive defense because the Guild did not investigate
misconduct by Brakefield, Jensen, and Ward—even though
Metoyer herself undermined the investigation. According to
the majority, Metoyer can have her cake (thwart the investiga-
tion by refusing to cooperate) and eat it too (sue the Guild for
the failed investigation).

   Second, the majority cites to a written declaration by Ron
Thompson, C.P.A., that “there were questions concerning
whether the [PwC] investigation truly encompassed all out-
standing grants.” First, it is axiomatic that asking a question
does not establish the facts related in the question. Thomp-
son’s “questions” prove nothing, one way or the other. Sec-
ond, Thompson based his “questions” on the final audit report
submitted by PwC, which contained only “the results of [the]
grant review for grants managed by” Metoyer. [ER 4:521].
The majority fails to explain, however, how this statement
evinces any bias on the part of the Guild.

   The majority’s imputation of bias to the Guild based on the
statements in the PwC report is inapposite. PwC was retained
by IACF, which is a separate legal entity from the Guild. [ER
73:12-13, 73:111-12]. Indeed, the Guild, as a recipient of
IACF grants, was the target of PwC’s investigation, not its
overseer. Thus, the Guild was not in a position to influence
PwC’s investigation.

   Further, Metoyer was not the sole subject of the PwC audit
because it is undisputed that PwC ultimately investigated 26
IACF grants, only three of which were administered by
Metoyer. [ER 73:111-12]. James Hunt (“Hunt”), who was
one of the two PwC employees to conduct the audit, stated in
a declaration that PwC was not “asked to investigate only Dr.
Metoyer’s grants, but all grants that had been awarded to the
Guild as well as grants that had been awarded to other enti-
ties.” [Id.] Bruce Dow, the Administrative Director of the
                  METOYER v. SCREEN ACTORS GUILD                    13201
IACF, stated in his declaration that five other grant adminis-
trators at the Guild were investigated, four of whom were
Caucasian and one of whom was an African-American
woman. [ER 73:14]. Hunt stated the reason why the final
report detailed misconduct only by Metoyer was because PwC
“did not find any signs of questionable expenditures or irregu-
larities with respect to any [other] IACF grants.” [ER
73:112].

   Finally, the majority also finds support from the statement
of Daniel Smith-Christopher, a professor at LMU. The major-
ity reasons that because PwC’s interview with Dr. Smith-
Christopher focused only on Metoyer, PwC’s investigation
must have been influenced by discriminatory animus toward
Metoyer. The reason why PwC questioned Dr. Smith-
Christopher only about Metoyer is simple: PwC found evi-
dence that Metoyer, and only Metoyer, entered into an “es-
crow agreement”24 with LMU wrongfully to transfer the
Guild’s funds. Where there was no evidence suggesting other
Guild employees used LMU to engage in misconduct, there
was no reason for PwC to question the LMU officials about
any other employee.
  24
     “Escrow” was the term Metoyer applied to the agreement. Of course,
it was nothing of the kind. An “escrow” requires a deposit of money pur-
suant to an agreement that calls for the transfer of the money upon the
happening of an event. The escrow holder is a neutral party who takes
instructions from both parties to the escrow and in strict adherence to the
escrow agreement or instructions. Here, there was (1) no escrow agree-
ment, (2) no second party with an interest in the money that gave instruc-
tions; and (3) no deposit of title to property or other action required to
cause the escrow holder to transfer funds. LMU was no “escrow holder”;
it was a “cut out” used to cover Metoyer’s tracks as to who was getting
the Guild’s money. So long as the payees’ names were only at LMU, they
were not at the Guild. Anybody looking at the Guild’s records would see
only “LMU” as a payee. “[T]he only apparent reason to make the transfer
to LMU to then receive the invoices and make the payments was to pre-
vent the Guild’s Accounting Department from questioning and learning of
the true recipients or personal uses of the funds.” [Hunt Declaration, ER
73:118].
13202             METOYER v. SCREEN ACTORS GUILD
  In short, the majority sees smoke where there is no fire.
Based on the foregoing evidence, no triable issue of fact
exists that the Guild would have terminated any employee
found to have engaged in similar misconduct. Consequently,
I would affirm the district court’s summary judgment for the
Guild on the retaliation claim.

                                    C.

   I also dissent from the majority’s reversal of summary
judgment on Metoyer’s discrimination and retaliation claims
under the California Fair Employment and Housing Act
(“FEHA”). I agree with the majority that the district court
erred in interpreting Metoyer’s statement in her supplemental
brief on a preemption issue as stipulating to the dismissal of
her FEHA claims.

   Notwithstanding this error, I would affirm the dismissal of
Metoyer’s FEHA claims on alternate grounds supported by
the record. Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924,
926 (9th Cir. 2003) (“We may affirm a district court’s judg-
ment on any ground supported by the record, whether or not
the decision of the district court relied on the same grounds
or reasoning we adopt.”). Metoyer’s state law discrimination
claim fails because, as discussed above in Part II.A, Metoyer
has failed to establish a prima facie case of discrimination.
See Tarin v. County of L.A., 123 F.3d 1259, 1263 n.2 (9th Cir.
1997) (noting California courts apply the Title VII framework
to FEHA claims).

   Likewise, I would affirm the district court’s grant of sum-
mary judgment on Metoyer’s FEHA retaliation claims
because, as discussed above in Part II.B, no triable issue of
fact exists as to the Guild’s mixed-motive defense.25
  25
    Although no California court has explicitly adopted the mixed-motive
defense as a bar to liability under FEHA, California courts have adopted
a jury instruction incorporating that defense. See BAJI 12.26 (“If you find
                  METOYER v. SCREEN ACTORS GUILD                     13203
                                    III.

   In sum, the majority got it wrong as to the law and as to the
facts. The majority added words to a statute where the words
do not exist, and the majority created a triable issue of fact
where no triable issue of fact exists. I would affirm the district
court’s grant of summary judgment for the Guild in its
entirety.

   I respectfully dissent.




that the employer’s action, which is the subject of plaintiff’s claim, was
actually motivated by both discriminatory and non-discriminatory reasons,
the employer is not liable if it can establish by a preponderance of the evi-
dence that its legitimate reason, standing alone, would have induced it to
make the same decision.”). Like § 1981, FEHA places no limitations on
the scope of this defense.
