                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               MAY 7 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOHN KWESELE,                                    No.   19-35398

              Plaintiff-Appellant,               D.C. No. 2:17-cv-01426-RAJ

 v.
                                                 MEMORANDUM*
KING COUNTY; et al.,

              Defendants-Appellees,

 and

DOES, I through X inclusive,

              Defendant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Richard A. Jones, District Judge, Presiding

                       Argued and Submitted April 28, 2020
                               Seattle, Washington

Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      John Kwesele alleges that his two probation extensions and termination were

motivated by racial discrimination and retaliation for his complaints of racial

hostility in the workplace. He appeals from the district court’s order granting

summary judgment in favor of Defendants King County, Josh Shields, Tom Jones,

Terry Rhoads, and Michael Avery on his racial-discrimination and retaliation

claims brought under 42 U.S.C. § 1981. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

1.    To hold King County liable under § 1981, Kwesele must show that his

“injury resulted from an official ‘policy or custom.’” See Fed’n of African Am.

Contractors v. City of Oakland, 96 F.3d 1204, 1205 (9th Cir. 1996) (quoting

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)); see also Pembaur v.

City of Cincinnati, 475 U.S. 469, 481 (1986) (finding that a decision of an official

with final policymaking authority “represents an act of official government

‘policy’”). Kwesele has not demonstrated that the alleged acts of discrimination

and retaliation resulted from either “a rule or regulation promulgated, adopted, or

ratified by” King County or a “‘permanent and well-settled’ practice” of

discriminatory or retaliatory discipline on the basis of race. See Thompson v. City

of Los Angeles, 885 F.2d 1439, 1443–44 (9th Cir. 1989) (quoting City of St. Louis

v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion)), overruled on other


                                          2
grounds by Bull v. City & County of San Francisco, 595 F.3d 964 (9th Cir. 2010)

(en banc). Nor has he shown that these actions were taken by employees with final

policymaking authority over these types of employment decisions. See McMillian

v. Monroe County, 520 U.S. 781, 786 (1997) (explaining that the determination of

whether an official has final policymaking authority “will necessarily be dependent

on the definition of the official’s functions under relevant state law”); Barone v.

City of Springfield, 902 F.3d 1091, 1107 (9th Cir. 2018) (“‘Authority to make

municipal policy may be granted directly by a legislative enactment’ or ‘delegated

by an official who possesses such authority.’” (quoting Pembaur, 475 U.S. at

483)). Accordingly, Kwesele’s § 1981 claims against King County fail.

2.    To prevail against the individual defendants, Kwesele “must prove that

[they] acted with intent to discriminate” or to retaliate against him in participating

in the decisions to extend his probation or terminate his employment. See Mustafa

v. Clark Cty. Sch. Dist., 157 F.3d 1169, 1180 (9th Cir. 1998) (per curiam); see also

CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008) (“[Section] 1981

encompasses claims of retaliation.”); Gen. Bldg. Contractors Ass’n v.

Pennsylvania, 458 U.S. 375, 391 (1982) (“We conclude, therefore, that § 1981 . . .

can be violated only by purposeful discrimination.”). There is no evidence that

Shields played any role in the challenged adverse employment decisions. And


                                           3
although Jones, Rhoads, and Avery each participated in one or more of these

decisions, Kwesele has failed to produce any direct evidence or specific and

substantial circumstantial evidence to support an inference that they participated

with the intent to discriminate or to retaliate against him. See Reynaga v. Roseburg

Forest Prods., 847 F.3d 678, 690 (9th Cir. 2017) (explaining that a plaintiff may

survive summary judgment by “produc[ing] direct or circumstantial evidence

demonstrating that a discriminatory reason ‘more likely than not motivated’ the

[defendant]” (quoting Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir. 2007)));

see also Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005)

(“[W]hen the plaintiff relies on circumstantial evidence, that evidence must be

‘specific and substantial’ to defeat the [defendant’s] motion for summary

judgment.” (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.

1998))).1 Therefore, his claims against the individual defendants also fail.

      AFFIRMED.



      1
         Because Kwesele has failed to demonstrate that the individual defendants
participated in the challenged adverse employment decisions with the intent to
discriminate or to retaliate against him, we need not address whether racial
discrimination or retaliation was the “but for” cause of Kwesele’s injuries. See
Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009, 1019
(2020) (“To prevail [under § 1981], a plaintiff must initially plead and ultimately
prove that, but for race, it would not have suffered the loss of a legally protected
right.”).
                                          4
