James Bolla v. David Mcclain, individually

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES BOLLA,
Plaintiff - Appellant,
v.
DAVID MCCLAIN, individually and in
his capacity as President of the University
of Hawaii; et al.,
Defendants - Appellees.
No. 11-15064
D.C. No. 1:09-cv-00165-SOM-LK
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted February 14, 2012
Honolulu, Hawaii
Before: GOODWIN, TROTT, and MURGUIA, Circuit Judges.
Appellant James Bolla brought this action against his former employer, the
University of Hawaii at Manoa (“University”), alleging, inter alia, retaliation in
violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a)
FILED
FEB 24 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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(“Title IX”). Bolla challenges the district court’s grant of summary judgment in favor
of the University on his retaliation claim due to Bolla’s failure to show that the
University’s legitimate, non-retaliatory reasons for firing him were pretextual. The
facts are known to the parties and we do not recite them here.
We generally look to Title VII standards to resolve claims brought under Title
IX. See, e.g., Oona, R.-S.- v. McCaffrey, 143 F.3d 473, 476-77 (9th Cir. 1998)
(applying Title VII standards to Title IX hostile environment claim). In order for a
plaintiff to prevail on a Title IX retaliation claim, he must first make out a prima facie
case of discrimination, which requires him to show that (1) he engaged in a protected
activity; (2) he subsequently suffered an adverse employment decision; and (3) there
was a causal link between the protected activity and the adverse employment decision.
See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). If the
plaintiff does so, then the burden shifts to the defendant to show legitimate,
non-retaliatory reasons for making the adverse decision. Dominguez-Curry v. Nev.
Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005). If the defendant provides such
reasons, the plaintiff must then “produce sufficient evidence to raise a genuine issue
of material fact as to whether the employer’s proffered [non-retaliatory] reason is
merely a pretext for [retaliation].” Id. If he relies on circumstantial evidence to show
pretext, the evidence must be “specific” and “substantial.” Cornwell v. Electra Cent.

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Credit Union, 439 F.3d 1018, 1030-31 (9th Cir. 2006). However, it is insufficient for
the plaintiff to simply deny the defendant’s proffered reason for firing him or rely on
his subjective belief that the challenged employment action was unwarranted. Id. at
1028 n.6.
Viewing the evidence in the light most favorable to Bolla, we conclude that the
University presented legitimate, non-retaliatory reasons for terminating Bolla and that
Bolla failed to present specific and substantial evidence that would raise a genuine
issue of fact about the believability of the University’s proffered reasons for firing
him. Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 753-54 (9th Cir.
2010). Although Bolla seeks to prove retaliation by comparing his case to that of
another coach who received more lenient treatment, we agree with the district court
that Bolla has failed to show how he and the other coach were similarly situated.
Specifically, Bolla has not shown that the other coach’s conduct caused a similar
reaction amongst the student athletes or that the other coach was also subject to
progressive discipline. Therefore, we find that Bolla has not presented sufficiently
specific and substantial evidence from which a jury could conclude that the
University’s reasons for firing Bolla were pretextual. See id.
Accordingly, we AFFIRM the district court’s grant of summary judgment in
favor of the University.

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