Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

The Ninth Circuit amended its prior opinion, denied a petition for panel rehearing, denied a petition for rehearing en banc on behalf of the court, and ordered that no further petitions shall be entertained.In the amended opinion, the panel affirmed the district court' s order denying qualified immunity to Police Chief James McElvain on plaintiff's First Amendment and Equal Protection disparate treatment claim. The panel stated that McElvain was profoundly mistaken in arguing that to state an equal protection claim, proof of discriminatory animus alone was insufficient, and plaintiff must show that defendants treated plaintiff differently from other similarly situated individuals. Rather, the panel held that the existence of a comparator is not a prerequisite to stating a disparate treatment claim under the Fourteenth Amendment. In this case, plaintiff established a prima facie claim for disparate treatment and the record supported the conclusion that McElvain's articulated reasons for not promoting Ballou were pretextual.In regard to McElvain's argument that he is entitled to qualified immunity on plaintiff's claim that she was retaliated against in violation of the Equal Protection Clause of the Fourteenth Amendment, the panel cannot discern from the district court's order whether it has jurisdiction under the collateral order doctrine to resolve that question, and thus the panel remanded to the district court to clarify its ruling. Finally, the panel concluded that plaintiff's speech opposing sex discrimination in the workplace was inherently speech on a matter of public concern and was clearly protected by the First Amendment. View "Ballou v. McElvain" on Justia Law

The Ninth Circuit affirmed the district court's dismissal of plaintiff's wrongful termination suit as preempted by the National Labor Relations Act (NLRA). Plaintiff's claims stemmed from allegations that UtiliQuest promised him that if he convinced all of his fellow employees to "sign away" their union rights, they would each receive a ten percent raise. However, plaintiff ended up being the only one with the raise. After confronting UtiliQuest of the breach in promise, he was terminated. Plaintiff alleged several California state law claims relating to his termination.The panel concluded that plaintiff's arguments are subject to Garmen preemption, concluding that the risk of interference with the Board's jurisdiction was sufficient to outweigh the state's interest in plaintiff's claims; the Board could consider plaintiff's advocacy for his fellow coworkers as concerted activity; and the Board could arguably consider plaintiff as an employee, rather than a supervisor. The panel also concluded that plaintiff's wage and hour claims were subject to claim preclusion in light of the California Superior Court's settlement judgment, which was entitled to full faith and credit. View "Moreno v. UtiliQuest, LLC" on Justia Law

Plaintiff was a Syrian national living in California as a legal permanent resident and is now a U.S. citizen. She is not and has never been a Kuwaiti national. In 2014, Plaintiff entered into a written employment contract with the Consulate to work as a secretary. Plaintiff alleges that the Consulate created a hostile work environment by harassing, discriminating, and retaliating against her on the basis of her gender, religion, and Syrian national origin, violated various wage and hour laws, and breached her employment contract. Claiming that she was constructively terminated from her employment, she filed suit.The Ninth Circuit affirmed the district court’s denial of the Consulate’s motion to dismiss. The commercial activity exception to the Foreign Sovereign Immunities Act, 28 U.S.C. 1605(a)(2), applied. The employment of diplomatic, civil service, or military personnel is governmental and the employment of other personnel is commercial unless the foreign state shows that the employee’s duties included “powers peculiar to sovereigns.” The district court properly exercised its discretion in finding that Plaintiff, who was employed as an administrative assistant, was not a civil servant and that her duties did not include “powers peculiar to sovereigns.” View "Mohammad v. General Consulate of the State of Kuwait in Los Angeles" on Justia Law

The Ninth Circuit certified to the Supreme Court of California the following question: Does California’s Fair Employment and Housing Act, which defines “employer” to include “any person acting as an agent of an employer,” Cal. Gov’t Code 12926(d), permit a business entity acting as an agent of an employer to be held directly liable for employment discrimination? View "Raines v. U.S. Healthworks Medical Group" on Justia Law

The Ninth Circuit affirmed the district court's order denying transfer under 28 U.S.C. 1404(a) and affirmed the grant of partial summary judgment to DePuy and Plaintiff Waber. Waber was hired by HOC and signed an employment contract with HOC's parent company, Stryker, which included restrictive one-year non-compete clause and forum-selection and choice-of-law clauses requiring adjudication of contract disputes in New Jersey.The panel concluded that, as the actual employer that participated in the proceedings to enforce its parent corporation’s forum-selection clause, HOC has a right to appeal the adverse decision of the district court on that issue. Furthermore, HOC properly became a party to this litigation in the district court case, albeit after the district court denied the motion to transfer. Accordingly, the panel has jurisdiction to hear HOC's appeal under 28 U.S.C. 1201. The panel held that the state law applicable here, Cal. Labor Code 925(b), which grants employees the option to void a forum-selection clause under a limited set of circumstances, determined the threshold question of whether Waber's contract contained a valid forum-selection clause. In this case, Waber satisfied all the prerequisites of section 925 and effectively voided the forum-selection clause under section 925(b). Finally, HOC presents no persuasive reason for the panel to overturn the district court's ruling of partial summary judgment in favor of DePuy and Waber that the forum-selection, non-compete and non-solicitation clauses were void under California law. View "DePuy Synthes Sales, Inc. v. Howmedica Osteonics Corp." on Justia Law

In response to the Port of Portland continuing to assign refer work to members of a particular union after leasing Terminal 6 to ICTSI. ILWU engaged in high-profile work stoppages and other coercive activity at Terminal 6. Ocean-going cargo traffic ceased for more than a year. ILWU’s actions forced ICTSI to buy back the remainder of its lease and leave Terminal 6. ICTSI filed charges against ILWU with the NLRB. The ALJ found that because the dispute was between ILWU and the Port, ILWU violated 29 U.S.C. 158(b)(4)(B), prohibiting unions from interfering with secondary employers (ICTSI). A jury awarded ICTSI more than $93.5 million. The court conditioned its post-trial rulings on ICTSI accepting remittitur of damages. ICTSI declined The district court certified its post-trial order for interlocutory appeal under 28 U.S.C. 1292(b).The Ninth Circuit dismissed the appeal for lack of jurisdiction. A court of appeals may assert jurisdiction over an interlocutory appeal under section 1292(b) if the district court determines that the order rests on a controlling question of law, there are substantial grounds for differences of opinion as to that question, and an immediate resolution may materially advance the termination of the litigation. The court of appeals enjoys broad discretion to refuse to accept it. The question on which ILWU relied was not a question of law; the parties’ dispute about whether ICTSI became a primary employer under the circumstances was a question of fact. View "ICTSI Oregon, Inc. v. International Longshore and Warehouse Union" on Justia Law

Charter fired Smith in 2018. Smith filed a federal diversity action under Montana’s wrongful-discharge statute, alleging that Charter lacked “good cause” to fire him, Mont. Code 39-2- 904(1)(b). The district court granted Charter summary judgmentThe Ninth Circuit held that the disposition of the appeal turns on a question of Montana law: whether a defendant in a wrongful-discharge action may establish good cause for the dismissal on grounds that were not set forth in the employee’s termination letter. The Montana Supreme Court held in 1995 (Galbreath), that an employer could not rely on such additional grounds, but some courts have concluded that later statutory amendments superseded Galbreath’s rule. The court certified to the Supreme Court of Montana the question: Whether, in an action for wrongful discharge pursuant to Montana Code section 39-2-904, an employer may defend a termination solely for the reasons given in a discharge letter, as the court held in Galbreath, or whether the 1999 statutory amendments have superseded the Galbreath rule. View "Smith v. Charter Communications, Inc." on Justia Law

After attempting without success to raise her concerns about unsafe medical practices with her employer (ENTA), Armstrong filed a complaint with the Nevada Occupational Safety and Health Administration (NOSHA). Armstrong alleges that ENTA retaliated against her, leading her to file a second complaint. When Armstrong withdrew her complaint before ENTA learned of it, fearing further retaliation, NOSHA notified ENTA about the complaint. More retaliation followed. When she filed a third whistleblowing complaint, NOSHA ended the investigation. ENTA fired Armstrong.The Ninth Circuit reversed the dismissal of Armstrong’s 42 U.S.C. 1983 procedural due process claim. Although Armstrong was an at-will employee, Nevada's whistleblower protections can support a property interest in continued employment. Armstrong might be able to plausibly allege a relationship between Nevada officials and her termination sufficient to sustain a “direct participation” or “setting in motion” theory. Armstrong had a property right in the investigation of her complaint; she plausibly alleged that the process she received was essentially nonexistent. Armstrong did not sufficiently allege a substantive due process claim based on a liberty interest. Armstrong did not plausibly allege that the defendants’ actions entirely precluded Armstrong’s ability to work as a human resources professional elsewhere. The court erred in dismissing a negligent infliction of emotional distress claim. View "Armstrong v. Reynolds" on Justia Law

In a putative class action by Domino’s drivers, asserting violations of various California labor laws, the district court denied a motion to compel arbitration based on its finding that the drivers were a “class of workers engaged in foreign or interstate commerce,” and were exempt from the Federal Arbitration Act (FAA), notwithstanding their contracts with Domino’s, which provided claims between the parties be submitted to arbitration under the FAA. The exemption applies if the class of workers is engaged in a “single, unbroken stream of interstate commerce” that renders interstate commerce a “central part” of their job description.The Ninth Circuit affirmed, rejecting Domino’s argument that the drivers who delivered goods to individual Domino’s franchisees in California were not engaged in interstate commerce because the franchisees, all located in California, placed orders with the supply center in the state, and the goods delivered were not in the same form in which they arrived at the supply center. Domino’s was directly involved in the procurement and delivery of interstate goods, was involved in the process from the beginning to the ultimate delivery of the goods, and its business included not just the selling of goods, but also the delivery of those goods. The transportation of interstate goods on the final leg of their journey by the Domino’s drivers satisfied the requirements of the residual clause. View "Carmona v. Domino's Pizza, LLC" on Justia Law

The Ninth Circuit certified to the Supreme Court of Oregon the following question: Under Oregon law, is time that employees spend on the employer's premises waiting for and undergoing mandatory security screenings compensable? View "Buero v. Amazon.com Services, Inc." on Justia Law