United States v. 2020-05-07 | 19-35398 | JOHN KWESELE V. KING COUNTY | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN KWESELE,
Plaintiff-Appellant,
v.
KING COUNTY; et al.,
Defendants-Appellees,
and
DOES, I through X inclusive,
Defendant.
No. 19-35398
D.C. No. 2:17-cv-01426-RAJ
MEMORANDUM
*
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted April 28, 2020
Seattle, Washington
Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.
FILED
MAY 7 2020
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.

John Kwesele alleges that his two probation extensions and termination were
motivated by racial discrimination and retaliation for his complaints of racial
hostility in the workplace. He appeals from the district court’s order granting
summary judgment in favor of Defendants King County, Josh Shields, Tom Jones,
Terry Rhoads, and Michael Avery on his racial-discrimination and retaliation
claims brought under 42 U.S.C. § 1981. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
1. To hold King County liable under § 1981, Kwesele must show that his
“injury resulted from an official ‘policy or custom.’” See Fed’n of African Am.
Contractors v. City of Oakland, 96 F.3d 1204, 1205 (9th Cir. 1996) (quoting
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)); see also Pembaur v.
City of Cincinnati, 475 U.S. 469, 481 (1986) (finding that a decision of an official
with final policymaking authority “represents an act of official government
‘policy’”). Kwesele has not demonstrated that the alleged acts of discrimination
and retaliation resulted from either “a rule or regulation promulgated, adopted, or
ratified by” King County or a “‘permanent and well-settled’ practice” of
discriminatory or retaliatory discipline on the basis of race. See Thompson v. City
of Los Angeles, 885 F.2d 1439, 1443–44 (9th Cir. 1989) (quoting City of St. Louis
v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion)), overruled on other
2

grounds by Bull v. City & County of San Francisco, 595 F.3d 964 (9th Cir. 2010)
(en banc). Nor has he shown that these actions were taken by employees with final
policymaking authority over these types of employment decisions. See McMillian
v. Monroe County, 520 U.S. 781, 786 (1997) (explaining that the determination of
whether an official has final policymaking authority “will necessarily be dependent
on the definition of the official’s functions under relevant state law”); Barone v.
City of Springfield, 902 F.3d 1091, 1107 (9th Cir. 2018) (“‘Authority to make
municipal policy may be granted directly by a legislative enactment’ or ‘delegated
by an official who possesses such authority.’” (quoting Pembaur, 475 U.S. at
483)). Accordingly, Kwesele’s § 1981 claims against King County fail.
2. To prevail against the individual defendants, Kwesele “must prove that
[they] acted with intent to discriminate” or to retaliate against him in participating
in the decisions to extend his probation or terminate his employment. See Mustafa
v. Clark Cty. Sch. Dist., 157 F.3d 1169, 1180 (9th Cir. 1998) (per curiam); see also
CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008) (“[Section] 1981
encompasses claims of retaliation.”); Gen. Bldg. Contractors Ass’n v.
Pennsylvania, 458 U.S. 375, 391 (1982) (“We conclude, therefore, that § 1981 . . .
can be violated only by purposeful discrimination.”). There is no evidence that
Shields played any role in the challenged adverse employment decisions. And
3

although Jones, Rhoads, and Avery each participated in one or more of these
decisions, Kwesele has failed to produce any direct evidence or specific and
substantial circumstantial evidence to support an inference that they participated
with the intent to discriminate or to retaliate against him. See Reynaga v. Roseburg
Forest Prods., 847 F.3d 678, 690 (9th Cir. 2017) (explaining that a plaintiff may
survive summary judgment by “produc[ing] direct or circumstantial evidence
demonstrating that a discriminatory reason ‘more likely than not motivated’ the
[defendant]” (quoting Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir. 2007)));
see also Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005)
(“[W]hen the plaintiff relies on circumstantial evidence, that evidence must be
‘specific and substantial’ to defeat the [defendant’s] motion for summary
judgment.” (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.
1998))).
1
Therefore, his claims against the individual defendants also fail.
AFFIRMED.
1
Because Kwesele has failed to demonstrate that the individual defendants
participated in the challenged adverse employment decisions with the intent to
discriminate or to retaliate against him, we need not address whether racial
discrimination or retaliation was the “but for” cause of Kwesele’s injuries. See
Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009, 1019
(2020) (“To prevail [under § 1981], a plaintiff must initially plead and ultimately
prove that, but for race, it would not have suffered the loss of a legally protected
right.”).
4