                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             MAY 27 2016
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

MARK J. SCHWARTZ,                                 No. 14-16365

              Plaintiff - Appellant,              D.C. No. 2:13-cv-00709-JCM-
                                                  VCF
 v.

CLARK COUNTY and JACQUELINE R.                    MEMORANDUM*
HOLLOWAY,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                        Argued and Submitted May 11, 2016
                             San Francisco, California

Before: WARDLAW, PAEZ, and BEA, Circuit Judges.

      Mark Schwartz appeals the district court’s grant of summary judgment in

favor of defendants on his Americans with Disabilities Act (“ADA”), Age

Discrimination in Employment Act (“ADEA”), and § 1983 claims. The district

court held that Schwartz failed to raise a genuine dispute of material fact as to



       *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir R. 36-3
whether his termination was motivated by his disability or his age, rather than by

legitimate budgetary concerns. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we reverse.

      1. Schwartz has raised a genuine dispute of material fact as to whether his

selection for a layoff was pretext for unlawful discrimination. The record evidence

shows that Clark County hired Schwartz pursuant to an agreement settling a charge

of discrimination he filed with the Nevada Equal Rights Commission. During his

eighteen-year tenure in the Business Licensing Department, Schwartz consistently

met or exceeded expectations and was “an exemplary team member,” yet was

isolated and ignored by the head of the department, Jacqueline Holloway.

      The record also supports Schwartz’s theory that Holloway manipulated the

results of the Human Resources (“HR”) study to single him out for a layoff: HR

initially recommended title changes for only two of the six Management Analysts

in the Business Licensing Department. After Holloway became involved, five of

the six—all of whom were non-disabled and younger than Schwartz—either

received or was offered a title change, while Schwartz remained classified as a

Management Analyst. Holloway then laid off all of the Management Analysts in

her department pursuant to the reduction in force. Additionally, during her

deposition, Holloway repeatedly lied about her involvement in the HR study and


                                          2
title change process: Holloway testified that she learned of the HR study results

just one month before they were finalized, and she had input only as to one

“technical note.” However, internal memoranda reveal that Holloway received the

study results more than nine months before they were finalized, and HR “invite[d]

[her] comments or suggestions.” Similarly, Holloway testified that she was not

aware that S.P. had been offered a title change. But email correspondence shows

that Holloway was aware of the proposed change. In fact, when Holloway and

Daniel Hoffman received push back from HR for S.P.’s proposed title change, one

of Holloway’s employees wrote and sent Holloway a statement defending it. A

reasonable jury could infer that this false testimony evinced Holloway’s

consciousness that she had unlawfully singled Schwartz out for the layoff.

      Although “the circumstantial evidence relied on by the plaintiff must be

specific and substantial” to defeat a motion for summary judgment, “a plaintiff’s

burden to raise a triable issue of pretext is hardly an onerous one.” France v.

Johnson, 795 F.3d 1170, 1175 (9th Cir.), as amended on reh’g (Oct. 14, 2015)

(citations omitted). Considering this and other evidence in the light most favorable

to Schwartz, a reasonable jury could conclude that Holloway’s explanation is




                                          3
“unworthy of credence” and that Schwartz was, in fact, terminated because of his

disability and/or age. Id.2

         2. The district court also erred in granting summary judgment on Schwartz’s

§ 1983 claim. The district court held that Schwartz’s parallel constitutional claim

failed because he “provide[d] no evidence that a discriminatory policy or practice

enacted by the municipality existed.” But Schwartz asserted a § 1983 claim only

against Holloway, arguing that she abused her position to discriminate against him

in violation of his rights to due process and equal protection. The evidence

supporting Schwartz’s ADA and ADEA claims also raises a triable issue as to this

claim.

         REVERSED AND REMANDED.




         2
        The dissent emphasizes that Holloway never made negative comments
about Schwartz’s disability or age to Schwartz or his co-workers, thereby inferring
that Holloway simply “was not particularly fond of” Schwartz. As the Supreme
Court has observed, however, contemporary discrimination tends to be more subtle
than the “undisguised restrictions” and overt expressions of bias that were once
commonplace. Ricci v. DeStefano, 557 U.S. 557, 620 (2009). And discrimination,
“subtle or otherwise,” is intolerable and unlawful. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 801 (1973).
                                           4
                                                                               FILED
Mark J. Schwartz v. Clark County and Jacqueline R. Holloway, No. 14-16365
                                                                                MAY 27 2016
BEA, Circuit Judge, dissenting:                                             MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS




         I respectfully dissent from the majority’s decision to reverse the district

court.

         To prevail on a claim under the Americans with Disabilities Act (“ADA”), a

plaintiff suing an employer must show that “he suffered an adverse employment

action because of his disability.” Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir.

2003) (citing Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir.

1999)). Summary judgment is proper if the plaintiff fails to proffer evidence

sufficient to support a finding that the employer’s explanation for discharging the

plaintiff was a pretext for disability discrimination. Snead v. Metropolitan Property

& Cas. Ins. Co., 237 F.3d 1080, 1093-94 (9th Cir. 2001). Similarly, under the Age

Discrimination in Employment Act (“ADEA”), the burden of proof “remains

always on the former employee[] to show that [the employer] intentionally

discriminated because of [his] age.” Coleman v. Quaker Oats Co., 232 F.3d 1271,

1280-81 (9th Cir. 2000). Here, Schwartz’s theory is that the defendants

discriminated against him when they laid him off. Schwartz has cerebral palsy and

uses a motorized scooter to get around. He was 63 years old at the time he was laid

off.
       Schwartz has proffered evidence tending to show that his manager,

Holloway, was not particularly fond of him. The evidence would allow a

reasonable juror to conclude that Holloway assigned Schwartz to a desk far away

from other managers. However, this does not tend to show that it was more likely

than not that Schwartz was selected for layoff because of his age or disability. A

reasonable juror could not so conclude. This is true even in light of the fact that

Schwartz was hired as part of a settlement agreement entered into by the county

nearly two decades before the countywide layoffs at issue here.

       The majority points out that the evidence is sufficient to allow a reasonable

juror to conclude that Holloway participated in a countywide employee

reclassification study, and that Holloway sought to have five of six management

analysts in her department reclassified with different job titles, i.e., all of the

management analysts in her department except Schwartz. One might think that

Holloway did this because she did not like Schwartz. Even so, this evidence would

not allow a reasonable juror to conclude that it was more likely than not that

Holloway was motivated by animus based on Schwartz’s age or disability.

Holloway ultimately laid off several employees who were younger than Schwartz,

and the hundreds of pages of deposition transcripts that Schwartz put before us

reveal that neither he, nor Holloway, nor his coworkers ever testified that anyone

                                             2
in the department made negative comments about age or disability. It seems

particularly doubtful that Holloway was motivated by a dislike of disabled persons

seeing as her sister also suffers from cerebral palsy and needs a wheelchair to get

around.

      The majority states that “Holloway repeatedly lied about her involvement in

the HR study and title change process” such that the evidence “evinced Holloway’s

consciousness that she had unlawfully singled Schwartz out for the layoff” because

of his age or disability. These “repeated lies” apparently consist of the following

two discrepancies: First, Holloway’s deposition testimony about when she found

out about the reclassification study was undermined by countywide memos,

addressed to her and others some months earlier, discussing the reclassification

process. Second, Holloway testified that another employee, S.P., was not offered a

title change during the reclassification study. This testimony was undermined by

two emails sent to Holloway in 2009 discussing a proposed title change for S.P. A

reasonable juror could conclude, in light of these memos and emails sent to

Holloway and others, that Holloway’s testimony might not be entitled to much

weight. However, these memos and emails do not “evince” a “consciousness” on

the part of Holloway that she “unlawfully singled Schwartz out for the layoff”

because of his age or disability. The majority supplies this gloss. It is not supplied

                                           3
by the facts.

      Schwartz’s evidence does not show that he was laid off “because of his

disability,” Allen, 348 F.3d at 1114, and it does not “show that [the employer]

intentionally discriminated because of [his] age.” Coleman, 232 F.3d at 1280-81.

Therefore I would affirm the district court’s grant of summary judgment in favor of

the defendants.




                                          4
