Carmen Blair v. DAVID SHULKIN, Secretary, Department of Veterans Affairs

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARMEN BLAIR,
Plaintiff-Appellant,
v.
DAVID SHULKIN, Secretary, Department
of Veterans Affairs,
Defendant-Appellee.
No. 15-55748
D.C. No.
2:13-cv-07478-CAS-FFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted March 6, 2017
Pasadena, California
Before: REINHARDT and NGUYEN, Circuit Judges, and EZRA,** District Judge.
Carmen Blair appeals the district court’s order granting summary judgment
in favor of the Department of Veterans Affairs (“VA”). Blair, a Protestant, filed an
action against the VA alleging that the Department violated Title VII by firing her
from her position as a chaplain on account of her Christian religion.
FILED
MAR 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Under the McDonnell Douglas framework, a plaintiff must first establish a
prima facie case of discrimination, at which point the burden then shifts to the
employer to articulate a legitimate, non-discriminatory reason for the challenged
action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973) If
the employer meets this burden, the plaintiff must then show that the defendant's
stated reason is pretext for unlawful discrimination. Id. at 804. In cases where the
same actor was responsible for both a plaintiff's hiring and the subsequent adverse
employment action, we apply the “same-actor inference,” and require that the
plaintiff make an “extraordinarily strong showing of discrimination.” Coghlan v.
Am. Seafoods Co. LLC, 413 F.3d 1090, 1097 (9th Cir. 2005).
Here, Blair introduced evidence that certain of her colleagues made
statements alleging that she was unable to minister effectively to patients of other
faiths. For the purposes of summary judgment, we follow the district court in
assuming that Blair has thus demonstrated a prima facie case of religious
discrimination.
The VA has in turn proffered legitimate, nondiscriminatory reasons for
dismissing Blair, namely that she failed to integrate with the other members of the
hospice unit’s interdisciplinary team, and that she did not maintain adequate patient
charts. The burden therefore shifts to Blair to show that there are genuine issues of
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material fact as to whether the explanations offered by the VA are in fact
pretextual. See, e.g., Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir.
2010).
A plaintiff may demonstrate that a defendant’s nondiscriminatory rationale
is pretextual “either directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing that the employer's
proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981). In this case, Blair additionally must overcome
the “same-actor inference,” as she alleges that Chaplain Vasquez and Dr.
Rosenfeld were responsible for both her hiring and her dismissal from the hospice
unit within a period of three months. Moreover, Chaplain Vasquez and Dr.
Rosenfeld knew that Blair was a Christian when they hired her for the position of a
“Protestant chaplain.” The very basis upon which Blair claims she was
discriminated against—her Christian faith—was a prerequisite for her initial
employment.
Here, Blair is unable to offer either direct or circumstantial evidence
sufficient to defeat the same-actor inference and to raise a genuine issue of material
fact as to whether the VA’s proffered nondiscriminatory rationales are pretextual.
Although we recognize that Blair has introduced evidence that certain patients
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regarded her as a competent chaplain, this showing does not rebut the VA’s
assertion that it believed that Blair was unable to integrate into the hospice unit
team. To the extent that Blair claims that the VA impermissibly created a “secular”
work environment, she is unable to show that the Department acted out of animus
toward her religion.1 In light of Blair’s failure to present evidence of pretext, we
conclude that the district court properly granted summary judgment for the VA on
Blair’s claim of religious discrimination.
The district court decision is AFFIRMED.
1 The Seventh Circuit has held that the VA must “walk a fine constitutional
line” in providing spiritual care for its patients, and thus may institute an
“ecumenical approach to its chaplaincy.” Baz v. Walters, 782 F.2d 701, 709 (7th
Cir. 1986). As we do here, the court in Baz rejected the plaintiff’s Title VII claim
alleging religious discrimination, concluding that he was fired not due to his
religious beliefs, but because his “view of his function as a Veteran’s
Administration chaplain . . . was decidedly different from the demands of his
superiors.” Id. at 705.
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