Gerald Morgan v. ELAINE L. CHAO, Secretary, U.S. Department of Transportation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD MORGAN,
Plaintiff-Appellant,
v.
ELAINE L. CHAO, Secretary, U.S.
Department of Transportation,
Defendant-Appellee.
No. 18-16160
D.C. No. 2:16-cv-04036-DLR
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted July 9, 2019
Portland, Oregon
Before: FERNANDEZ, TASHIMA, and OWENS, Circuit Judges.
Gerald Morgan appeals from the district court’s grant of summary judgment
to his employer, the Federal Aviation Administration (FAA), on Morgan’s Title
VII retaliation claim. Morgan also appeals from the district court’s Rule 12(b)(1)
dismissal for lack of subject matter jurisdiction of his Title VII claim for damages
arising from an on-the-job car accident. As the parties are familiar with the facts,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUL 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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we do not recount them here. We vacate and remand in part and affirm in part.
The district court erred in granting summary judgment based on Morgan’s
failure to establish that the FAA’s legitimate, nondiscriminatory reasons for his job
reassignment were pretextual. Morgan raised a genuine issue of fact as to pretext
by declaring that his supervisor—while handing Morgan his reassignment
papers—stated, “I don’t know why you have to file EEO, after a [sic] told you not
to,” “I am very disappointed at you,” and “You are driving to Tucson every day
now. I have to show that I did something!” Therefore, we vacate the district
court’s order granting summary judgment and remand for the district court to
decide in the first instance whether Morgan established a prima facie case of
retaliation.
The district court properly concluded that the Federal Employees’
Compensation Act provides the exclusive remedy for Morgan’s accident-related
injuries. See 5 U.S.C. § 8116(c). Therefore, we affirm the district court’s
dismissal of Morgan’s Title VII claim seeking damages arising from his on-the-job
car accident.
VACATED AND REMANDED IN PART, AFFIRMED IN PART.

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