Scott Teutscher, an individual v. Riverside Sheriffs Association

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT TEUTSCHER, an individual,
Plaintiff-counter-defendant -
Appellant,
v.
RIVERSIDE SHERIFFS ASSOCIATION;
RIVERSIDE SHERIFFS ASSOCIATION
LEGAL DEFENSE TRUST; JAMES L.
CUNNINGHAM, individually and as an
Agent of the Riverside Sheriffs
Association/Riverside Sheriffs Association
Legal Defense Trust,
Defendants-counter-claimants
- Appellees,
and
TANYA CONRAD, individually and as an
Agent of the Riverside Sheriffs
Association,
Defendant - Appellee.
No. 10-56827
D.C. No. 5:06-cv-01208-RHW-OP
Central District of California,
Riverside
ORDER
Before: B. FLETCHER, KLEINFELD, and M. SMITH, Circuit Judges.
Appellee Riverside Sheriffs’ Association Legal Defense Trust’s Petition for
Rehearing filed on June 29, 2012 is granted, without further oral argument.
FILED
JUL 17 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The memorandum disposition filed on June 25, 2012 is replaced. We file an
amended memorandum disposition concurrently with this order.
No further petitions shall be entertained.

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This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT TEUTSCHER, an individual,
Plaintiff-counter-defendant -
Appellant,
v.
RIVERSIDE SHERIFFS ASSOCIATION;
RIVERSIDE SHERIFFS ASSOCIATION
LEGAL DEFENSE TRUST; JAMES L.
CUNNINGHAM, individually and as an
Agent of the Riverside Sheriffs
Association/Riverside Sheriffs Association
Legal Defense Trust,
Defendants-counter-claimants
- Appellees,
and
TANYA CONRAD, individually and as an
Agent of the Riverside Sheriffs
Association,
Defendant - Appellee.
No. 10-56827
D.C. No. 5:06-cv-01208-RHW-OP
AMENDED MEMORANDUM*
Appeal from the United States District Court
FILED
JUL 17 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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for the Central District of California
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted April 10, 2012
Pasadena, California
Before: B. FLETCHER, KLEINFELD, and M. SMITH, Circuit Judges.
Plaintiff-Appellant Scott Teutscher (Teutscher) appeals from the district
court’s order granting summary judgment to the defendants. Because the parties
are familiar with the factual and procedural history of this case, we repeat only
those facts necessary to resolve the issues raised on appeal. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse in part.
We reverse the district court’s grant of summary judgment on Teutscher’s
retaliation claim under the Employee Retirement Income Security Act (ERISA), 29
U.S.C. § 1001 et seq. To survive summary judgment at the pretext stage, a
plaintiff “must produce sufficient evidence to raise a genuine issue of material fact
as to whether the employer’s proffered nondiscriminatory reason is merely a
pretext for discrimination.” Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d
1027, 1037 (9th Cir. 2005). “The plaintiff can prove pretext (1) indirectly, by
showing that the employer’s proffered explanation is unworthy of credence
because it is internally inconsistent or otherwise not believable, or (2) directly, by
showing that unlawful discrimination more likely motivated the employer.” Raad

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v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003)
(internal quotation marks and citation omitted). “All of the evidence—whether
direct or indirect—is to be considered cumulatively.” Id. The amount of evidence
required to avoid summary judgment is “minimal.” Nicholson v. Hyannis Air
Serv., Inc., 580 F.3d 1116, 1127 (9th Cir. 2009). “We have held that very little
evidence is necessary to raise a genuine issue of fact regarding an employer’s
motive; any indication of discriminatory motive may suffice to raise a question that
can only be resolved by a fact-finder.” Id. (citation omitted).
Here, Teutscher offers sufficient admissible evidence to raise a genuine issue
of material fact as to pretext. In particular, Teutscher’s evidence that he was told
by Pat McNamara (McNamara) and James Cunningham (Cunningham) that Tanya
Conrad (Conrad) recanted her accusations about Teutscher’s alleged misconduct is
substantial evidence that Conrad’s accusations were not the true reason for
Teutscher’s termination. Although this evidence contains hearsay within hearsay,
it is admissible under Federal Rules of Evidence 801(d)(2)(D) and 805. See Fed.
R. Evid. 801(d)(2)(D); Fed. R. Evid. 805; Palmer v. Pioneer Inn Assocs., Ltd., 338
F.3d 981, 984-85 (9th Cir. 2003); Lambert v. Ackerley, 180 F.3d 997, 1008 & n.12
(9th Cir. 1999) (en banc). Other evidence also suggests pretext, such as

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Cunningham’s statement to Teutscher that “[w]e question your loyalty to Pat
[McNamara] in the Winchell case” and the timing of Teutscher’s termination.
Because Teutscher raises a genuine issue of material fact as to pretext, we
conclude that the district court erred in granting the defendants summary judgment
on Teutscher’s ERISA retaliation claim. For the same reason, we reverse the
district court’s grant of summary judgment on Teutscher’s California state law
claims other than for defamation.
The district court did not err in granting summary judgment to the
defendants on Teutscher’s defamation claim because Teutscher did not produce
sufficient evidence to raise a genuine issue of fact as to malice. See Cal. Civ. Code
§ 47(c); Noel v. River Hills Wilsons, Inc., 7 Cal. Rptr. 3d 216, 221-22 (Ct. App.
2003).
The district court did not err in granting summary judgment to Riverside
Sheriffs’ Association Legal Defense Trust (LDT) because Teutscher presented no
evidence that LDT had any role in the decision to fire him or had significant
control over his daily activities.
In light of our conclusions, we need not reach the remaining issues raised by
the parties. For the foregoing reasons, we affirm in part and reverse in part. We

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deny Teutscher’s request that the case on remand be assigned to a different district
judge. See United States v. Lyons, 472 F.3d 1055, 1071 (9th Cir. 2007).
The case is hereby remanded to the district court for trial against Riverside
Sheriffs’ Association and Cunningham on Teutscher’s ERISA retaliation claim and
California state law claims other than for defamation. Each party shall bear its
own costs.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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