LARRY D. RUSSELL, D.D.S. and PAULETTE RUSSELL, husband and wife v. MOUNTAIN PARK HEALTH CENTER PROPERTIES, LLC, an Arizona limited liability…

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Louis H. Pollak, Senior United States District Judge**
for the Eastern District of Pennsylvania, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY D. RUSSELL, D.D.S. and
PAULETTE RUSSELL, husband and
wife,
Plaintiffs - Appellants,
v.
MOUNTAIN PARK HEALTH CENTER
PROPERTIES, LLC, an Arizona limited
liability corporation doing business as
Mountain Park Health Center; et al.,
Defendants - Appellees.
No. 08-16798
D.C. No. 2:07-cv-00875-NVW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted October 6, 2010
San Francisco, California
Before: REINHARDT and BERZON, Circuit Judges, and POLLAK, Senior
District Judge.**
FILED
NOV 08 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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While Russell’s declaration contained no statements relating to age1
discrimination, Mountain Park’s statement of facts supporting summary judgment
cited to various portions of Russell’s deposition testimony where he alleged
discriminatory treatment based on age. Moreover, the district court expressly
acknowledged Russell’s testimony that Dr. Bader had commented that Russell was
similar in age to her father. Consequently, we do not treat this evidence as having
been excluded under Local Rule 56.1(b).
2
Larry D. Russell appeals the district court’s grant of summary judgment
dismissing his claims against Mountain Park Health Center. We affirm in part,
reverse in part, and remand.
It was not an abuse of discretion for the district court to hold that Russell’s
brief in response to Mountain Park’s motion for summary judgment did not meet
the requirements of Local Rule of Civil Procedure 56.1(b).
Russell nonetheless presented evidence of hostile comments directed against
him on the basis of both his race and age, and also raised significant questions
regarding the legitimacy of the non-discriminatory reasons that Mountain Park
proffered for his firing. Such a showing is sufficient to raise a jury question as to1
whether Mountain Park’s non-discriminatory reasons for Russell’s firing were
pretextual. There is also a genuine issue of fact as to whether the individuals
responsible for Russell’s termination were actually responsible for his hiring,
rather than simply participants in that process, and thus Mountain View is not
entitled for purposes of summary judgment to the “same-actor” inference of non-

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3
discrimination. See Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1096 (9th Cir.
2005). The district court thus erred in granting summary judgment on Russell’s
wrongful termination claims under Title VII, the ADEA, and 42 U.S.C. § 1981.
See Anthoine v. N. Central Counties Consortium, 605 F.3d 740, 753 (9th Cir.
2010); see generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Russell alleges that Mountain Park violated the Family and Medical Leave
Act (FMLA). Mountain Park stated that one reason for Russell’s firing was an
independent expert’s determination, based on a review of 12 patient charts selected
by Mountain Park, that Russell provided sub-standard care to his patients. Russell
alleges that all 12 of those charts belonged to patients whose care Russell was
unable to complete due to his use of medical leave protected by the FMLA. The
FMLA implementing regulations prohibit an employer from interfering with an
employee’s rights under the Act by “us[ing] the taking of FMLA leave as a
negative factor in employment actions.” 29 C.F.R. § 825.220(c). Russell alleges
precisely such interference. The district court therefore erred in dismissing his
FMLA claims.
Russell has not provided sufficient evidence to raise a jury question as to
harassment under the ADEA, Title VII, or § 1981. The evidence Russell provided
does not establish conduct “sufficiently severe or pervasive to alter the conditions

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Russell does not appeal the grant of summary judgment against his state2
law claims.
4
of the victim's employment and create an abusive working environment.” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citations
omitted).2
The doctrine of after-acquired evidence does not preclude the possibility of
Russell recovering damages. Cf. McKennon v. Nashville Banner Publ’g Co., 513
U.S. 352, 362 (1995) (“An absolute rule barring any recovery of backpay [based
upon after-acquired evidence] would undermine the ADEA's objective of forcing
employers to consider and examine their motivations, and of penalizing them for
employment decisions that spring from age discrimination.”). While the district
court can take equitable considerations into account in crafting remedies for
violations of Title VII and the ADEA, if Mountain Park succeeds in proving that
the after-acquired evidence doctrine applies, such a showing would, at most, limit
Russell’s damages award to “backpay from the date of the unlawful discharge to
the date the new information was discovered.” Id.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

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