United States v. 2005-07-06 | 03-35314 | COUGHLAN VAMERICAN SEAFOODS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JAMES W. COGHLAN,
Plaintiff-Appellant, No. 03-35314
v. D.C. No.
 CV-02-01165-BJRAMERICAN SEAFOODS COMPANY
LLC, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding
Argued and Submitted
February 9, 2005—Seattle, Washington
Filed July 7, 2005
Before: Diarmuid F. O’Scannlain, Edward Leavy, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain
7935

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COUNSEL
Scott E. Collins, Helsell Fetterman LLP, Seattle, Washington,
argued the cause for the appellant; Jennfer S. Divine, Helsell
Fetterman LLP, was on the briefs.
Alex J. Higgins, Stokes Lawrence, P.S., Seattle, Washington,
argued the cause for the appellee.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the showing necessary for an
employee to prevail against his employer’s motion for sum-
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mary judgment in this employment discrimination case is
heightened because the person who demoted him had previ-
ously appointed and promoted him; if so, we must decide
whether the employee’s evidence of discrimination is suffi-
cient to meet the heightened burden.
I
James Coghlan is a resident of Washington and a commer-
cial fisherman. From 1997 onward, he was employed by
American Seafoods Company LLC (ASC), which operates
fishing vessels off the coast of the Pacific Northwest and in
Alaskan waters. Until the American Fisheries Act (AFA)1 was
passed in 1998, ASC was owned and operated by a Norwe-
gian parent corporation. The AFA required certain fishing
companies, including those engaged in the Alaska pollock and
cod fisheries, to be American-owned. ASC complied with the
law, but its management remains largely the same as it was
before the AFA was passed and is made up primarily of
native Norwegians.
In 1997 Coghlan was working as master2 of the Victoria
Ann when ASC purchased that vessel. He continued to serve
as master of the Victoria Ann until 1998, when ASC took the
Victoria Ann out of service because provisions of the AFA
effectively required it to reduce its active fleet. Many masters,
mates, and other crewmembers were laid off, but ASC
retained Coghlan and appointed him master of the Katie Ann,
one of its six factory trawlers still in service. The person
responsible for the decision to retain Coghlan was Inge
Andreassen, ASC’s Vice President of Operations and a man
of Norwegian birth. According to Andreassen’s declaration,
1Pub. L. 105-277, div. C, tit. II, 112 Stat. 2681 (codified as amended in
scattered sections of 16 and 26 U.S.C.).
2The top two positions on fishing boats of this sort are, first, the “mas-
ter” or “captain” and, second, the “mate.”
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he selected Coghlan for the job despite the availability of at
least one Norwegian candidate, Tor Storkersen.
Coghlan continued to serve as the master of the Katie Ann
until 2000, when ASC decided to place another vessel, the
American Dynasty, back into operation. At that time ASC
appointed Coghlan as mate of the Dynasty; the ship’s master
was Kristjan Petursson, who was born in Iceland. Again,
Andreassen was responsible for the decision to transfer Cogh-
lan. Although the transfer technically involved a step down in
rank, from master to mate, Coghlan’s new position provided
an opportunity to make more money and Coghlan saw it as a
desirable change. Coghlan remained mate of the Dynasty until
November 2001.
On two occasions in September and October 2001, Petur-
sson had to be temporarily absent as master of the Dynasty.
On each occasion, instead of appointing Coghlan as the “relief
master” (i.e., temporary master) as Coghlan would have liked,
Andreassen selected the Norwegian-born Jarl Hogseth to fill
the position. Coghlan considered himself more qualified than
Hogseth, especially since he had been serving on the Dynasty
for more than a year and knew the vessel. Andreassen stated
in his declaration that he made his decision on the basis of a
recommendation from Frank Vargas, ASC’s Fleet Operations
Manager and a native-born American of Filipino ancestry.
In November 2001, Andreassen was dissatisfied with the
Dynasty’s performance. Its production levels were low and its
expenses for equipment replacement were high for a boat of
its size. Michael Hyde, the president of ASC, stated in his
declaration that he instructed Andreassen to change the
Dynasty’s leadership and to allow neither Petursson nor
Coghlan to serve as its master. After consulting with Frank
Vargas as well as Tammy French, ASC’s Vice President of
Human Resources and an American of non-Nordic heritage,
Andreassen removed Coghlan from the vessel and demoted
Petursson to the position of mate. Andreassen stated in his
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declaration that Vargas’s recommendation carried special
weight because he is in day-to-day contact with the ships and
had previously served as master of the Dynasty himself.
Andreassen offered the master position to an American of
non-Norwegian descent, Mike Kraljevich, who was then serv-
ing as a mate on another ASC vessel. Kraljevich declined,
however, and Andreassen instead appointed Ole Knotten, a
man of Norwegian descent. Knotten had little experience fish-
ing in American waters and only obtained a Coast Guard
license shortly before he was to take over as master of the
Dynasty, but he had been working on fishing vessels in Rus-
sia for more than ten years, including a stint as fishmaster on
what Andreassen described as “the most sophisticated factory
trawler ever built.” Around the same time in late 2001,
Andreassen removed the masters on two other ASC vessels,
both of whom were American. Both of their replacements
were Norwegian-born men.
With the 2002 fishing season approaching and Coghlan
having been removed as mate of the Dynasty, Andreassen
offered Coghlan the position of mate on the Katie Ann.
(According to the declarations of Andreassen and Vargas,
they first considered Coghlan for the master position, but
were unable to reach him and got the feeling that he was
avoiding them. Coghlan disputes this.) Coghlan found such
offer objectionable, considering that he had previously served
as master of the Katie Ann and felt that he should be reap-
pointed to that position. Instead, Andreassen appointed Jarl
Hogseth as master. Coghlan declined the offer of the mate
position and brought this lawsuit in the Western District of
Washington.
Coghlan alleged national-origin discrimination under Title
VII and the Washington Law Against Discrimination.3 ASC
moved for summary judgment supported by declarations and
3He also alleged impermissible retaliation and wrongful discharge in
violation of public policy, but does not pursue those claims on appeal.
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depositions, arguing that the adverse employment actions
regarding Coghlan were motivated by legitimate, nondiscrim-
inatory reasons, namely, the poor performance of the Dynasty
in 2001 and observed problems in Coghlan’s employment his-
tory. The district court granted ASC’s motion, and this appeal
timely followed.
II
We analyze Coghlan’s disparate-treatment claim of
employment discrimination under the burden-shifting frame-
work outlined by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).4 Under that framework,
the burden of production first falls on the plaintiff to make out
a prima facie case of discrimination. He may do so by show-
ing that (1) he belongs to a protected class, (2) he was quali-
fied for the position he held (or for the position to which he
wished to be promoted), (3) he was terminated or demoted
from (or denied a promotion to) that position, and (4) the job
went to someone outside the protected class. St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 506 (1993); McGinest
v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004). The
burden of production then shifts to the employer, who must
present evidence sufficient to permit the factfinder to con-
clude that the employer had a legitimate, nondiscriminatory
reason for the adverse employment action. St. Mary’s Honor
Center, 509 U.S. at 506-07. Finally, if the employer meets
that burden, then the McDonnell Douglas framework drops
out of the picture entirely, and the plaintiff bears the full bur-
den of persuading the factfinder that the employer intention-
ally discriminated against him. Id. at 507-08.
We proceed to apply the McDonnell Douglas framework to
the evidence in this case.
4Washington’s employment discrimination law largely parallels federal
law under Title VII, and our treatment of Coghlan’s Title VII claim thus
applies also to his similar claim under Washington law. See Hernandez v.
Spacelabs Medical Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).
7942 COGHLAN v. AMERICAN SEAFOODS CO.

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A
[1] ASC argues—though only in a footnote—that Coghlan
failed to make out a prima facie case of discrimination. ASC
admits that Coghlan belonged to a protected class (non-
Norwegian-born workers); that he was twice not appointed as
relief master of the Dynasty, that he was removed as mate of
the Dynasty, and that he was not appointed master of the
Katie Ann; and that the people chosen instead were
Norwegian-born and thus outside the protected class. It
argues, however, that he was not qualified for those positions
because he was not performing at a level consistent with
ASC’s expectations. This argument is not convincing.5 We
have emphasized that “[t]he requisite degree of proof neces-
sary to establish a prima facie case for Title VII and ADEA
claims on summary judgment is minimal and does not even
need to rise to the level of a preponderance of the evidence.”
Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994);
see also Aragon v. Republic Silver State Disposal, Inc., 292
F.3d 654, 659-60 (9th Cir. 2002) (emphasizing the low thresh-
old for a prima facie case and holding that even an employ-
ee’s self-assessment is relevant evidence). Coghlan has
presented enough evidence to meet this minimal burden: most
notably, he had previously served as master of two of ASC’s
vessels, the Victoria Ann and the Katie Ann, and was offered
the important position of mate on the Dynasty, suggesting that
he was not incompetent to handle major duties on a relatively
large ship.
[2] As for the second step of the McDonnell Douglas
framework, Coghlan does not dispute that ASC’s articulation
of nondiscriminatory reasons for its actions was sufficient to
cause the framework to drop away and to place the burden
5Moreover, it appears that ASC waived this argument by not presenting
it to the district court. See Harris v. Pulley, 885 F.2d 1354, 1367 (9th Cir.
1988). We need not rest on its waiver, however, because we reject the
argument even on its merits.
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back on Coghlan to show that ASC’s explanations were actu-
ally a pretext for discrimination.
A plaintiff may meet the burden to show pretext using
either direct or circumstantial evidence. Direct evidence is
evidence “which, if believed, proves the fact [of discrimina-
tory animus] without inference or presumption.” Godwin v.
Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)
(quoting Davis v. Chevron, U.S.A., Inc., 14 F.3d 1082, 1085
(5th Cir. 1994)) (alteration in original). Direct evidence typi-
cally consists of clearly sexist, racist, or similarly discrimina-
tory statements or actions by the employer. See, e.g., Godwin,
150 F.3d at 1221 (supervisor stated he “did not want to deal
with [a] female”); Cordova v. State Farm Ins., 124 F.3d 1145,
1149 (9th Cir. 1997).6
Circumstantial evidence, in contrast, is evidence that
requires an additional inferential step to demonstrate discrimi-
nation. It can take two forms. First, the plaintiff can make an
affirmative case that the employer is biased. For example, sta-
tistical evidence is circumstantial evidence that could, if suffi-
ciently probative, point to bias. See Aragon, 292 F.3d at 663.
Second, the plaintiff can make his case negatively, by show-
ing that the employer’s proffered explanation for the adverse
action is “unworthy of credence.” Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981). As the Supreme
Court has explained:
6When the evidence in question is of an employer’s statements that do
not directly concern the plaintiff, it is true that some inference is necessary
to establish discrimination with regard to the plaintiff. Indeed, strictly
speaking, little other than an employer’s own admission could establish
discriminatory intent without any inference whatsoever. Nevertheless,
when evidence establishes the employer’s animus toward the class to
which the plaintiff belongs, the inference to the fact of discrimination
against the plaintiff is sufficiently small that we have treated the evidence
as direct. See Cordova, 124 F.3d at 1149 (deeming “direct” evidence that
the employer had referred to an employee other than the plaintiff as a
“dumb Mexican”).
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Proof that the defendant’s explanation is unworthy
of credence is simply one form of circumstantial evi-
dence that is probative of intentional discrimination,
and it may be quite persuasive.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
147 (2000).
The distinction between direct and circumstantial evidence
is crucial, because it controls the amount of evidence that the
plaintiff must present in order to defeat the employer’s motion
for summary judgment.7 Because direct evidence is so proba-
tive, the plaintiff need offer “very little” direct evidence to
raise a genuine issue of material fact. Godwin, 150 F.3d at
1221. But when the plaintiff relies on circumstantial evidence,
that evidence must be “specific and substantial” to defeat the
employer’s motion for summary judgment.8 Id. at 1222 (inter-
nal quotation marks removed); see also Aragon, 292 F.3d at
661.
7We have recently suggested that “specific and substantial” evidence
may be required even when direct evidence is at issue. See Stegall v. Cita-
del Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2003). We need not
decide today whether that is so, because as we will explain, Coghlan pre-
sents no evidence that qualifies as “direct” under the relevant definition.
8Unfortunately, some confusion may arise because the terms “direct”
and “indirect” have occasionally been used, even by the Supreme Court,
to distinguish the two varieties of circumstantial evidence—that is, evi-
dence affirmatively establishing bias, and evidence negatively discrediting
the employer’s stated rationale. See, e.g., Burdine, 450 U.S. at 256; Snead
v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093-94 (9th Cir. 2001)
(quoting Burdine). Coghlan thus suggests that evidence such as ASC’s
choice to pass over Coghlan in favor of an allegedly less-qualified Norwe-
gian qualifies as “direct.” We made clear in Godwin, however, that for
purposes of determining the level of evidence necessary to survive a sum-
mary judgment motion, “direct” evidence refers only to evidence (such as
racist or sexist statements) that proves the fact of discriminatory animus
without the need for substantial inference. See Godwin, 150 F.3d at 1221;
Stegall, 350 F.3d at 1066.
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Coghlan does not offer any direct evidence of ASC’s dis-
criminatory intent. Because his case is entirely circumstantial,
he would have to present “specific and substantial” evidence
of intentional discrimination to defeat ASC’s motion for sum-
mary judgment. See Aragon, 292 F.3d at 661. His burden is
especially steep in this case because of the so-called “same
actor inference,” to which we now turn.
B
[3] In Bradley v. Harcourt, Brace & Co., 104 F.3d 267 (9th
Cir. 1996), we held that “where the same actor is responsible
for both the hiring and the firing of a discrimination plaintiff,
and both actions occur within a short period of time, a strong
inference arises that there was no discriminatory action.” Id.
at 270-71. That holding is relevant here because Inge
Andreassen, the man who made all of the challenged employ-
ment decisions, was the same man who appointed Coghlan as
master of the Katie Ann in 1998 (over at least one viable can-
didate of Norwegian descent, according to Andreassen’s dec-
laration). He was also the same man who selected Coghlan for
the position of mate/fishmate on the Dynasty in 2000, an
appointment that Coghlan desired and viewed as a change for
the better.
[4] We based our holding in Bradley on the principle that
an employer’s initial willingness to hire the employee-
plaintiff is strong evidence that the employer is not biased
against the protected class to which the employee belongs. Id.
Thus, although we phrased the same-actor rule in Bradley in
terms of “hiring and . . . firing,” its logic applies no less to
cases such as this one, in which the plaintiff was not actually
fired but merely offered a less desirable job assignment.9 See
9Cases not involving hiring and firing could arise, no doubt, in which
the same-actor inference would be inappropriate. For example, if a plain-
tiff were alleging that his employer systematically excluded members of
a certain class from upper-management positions, then the mere fact that
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Hartsel v. Keys, 87 F.3d 795, 804 n.9 (6th Cir. 1996) (apply-
ing the same-actor inference where the decisionmaker had not
hired the plaintiff but had previously promoted her).
Coghlan offers several reasons why the same-actor infer-
ence should not apply, but none is convincing.10 First, he sug-
gests that application of the same-actor inference in the
summary judgment context is inconsistent with the holding of
the Supreme Court in Reeves.11 The Supreme Court held in
that case that “a plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s asserted justifi-
cation is false, may permit the trier of fact to conclude that the
employer unlawfully discriminated.” Reeves, 530 U.S. at 148.
In other words: in many cases where the evidence is sufficient
for a rational trier of fact to conclude that the employer is
lying about its reason for firing or demoting the plaintiff,
summary judgment will be inappropriate on that basis alone
the employer was willing to hire members of that class for lower-level
positions would surely not prove otherwise. This is not such a case,
though, because the relevant decisionmaker, Andreassen, had not merely
hired Coghlan but had appointed him to advanced positions: master of the
Katie Ann and mate/fishmate of the Dynasty.
10Coghlan argues that the district court mistakenly applied the same-
actor inference as a “mandatory presumption overriding all other evidence
in the case.” The district court, however, was clearly aware that the same-
actor inference was not “mandatory,” since it wrote that “Coghlan fails to
rebut the presumption,” whereas a mandatory presumption is by definition
irrebuttable. It is true that the district court used the term “presumption”
rather than the term “inference” that appears in Bradley, and in some con-
texts, the two terms can have different meanings. It is clear, though, that
we did not use the term “inference” in Bradley in its technical sense. The
point, as Bradley makes clear and as the district court understood, is sim-
ply that when the allegedly discriminatory actor is someone who has pre-
viously selected the plaintiff for favorable treatment, that is very strong
evidence that the actor holds no discriminatory animus, and the plaintiff
must present correspondingly stronger evidence of bias in order to prevail.
11Though Coghlan does not say so, this is necessarily an argument that
Bradley is no longer good law, because Bradley itself dealt with the sum-
mary judgment context.
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because a jury could reasonably view the employer’s lie as
evidence of its guilt.12 That holding has no bearing on the
same-actor inference, however, because the point of the same-
actor inference is that the evidence rarely is “sufficient . . . to
find that the employer’s asserted justification is false” when
the actor who allegedly discriminated against the plaintiff had
previously shown a willingness to treat the plaintiff favorably.
Reeves, then, tells us only that if a plaintiff can muster the
extraordinarily strong showing of discrimination necessary to
defeat the same-actor inference, then the case likely must go
to the jury.
Coghlan also argues that the same-actor inference is not
relevant here because three years elapsed between 1998, when
Andreassen appointed Coghlan master of the Katie Ann, and
2001, when the earliest of the allegedly discriminatory deci-
sions occurred. Bradley did limit its holding to cases where
the alleged discrimination took place “within a short period of
time” after the favorable action. Bradley, 104 F.3d at 270-71.
We reject Coghlan’s argument, however, for several reasons.
First, this length of time would be significant only had Cogh-
lan proffered evidence suggesting that Andreassen developed
a bias against Norwegians during that period; but he did not.
Cf. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1286 (9th
Cir. 2000) (taking the same-actor inference into account when
the positive action occurred more than a year earlier than the
negative action); Schnabel v. Abramson, 232 F.3d 83, 91 (2d
Cir. 2000) (basing affirmance of summary judgment in an
employment discrimination case in part on the fact that the
plaintiff “was fired by the same man who had hired him three
years earlier”).
12The Supreme Court needed to make this explicit in Reeves because
some lower courts had effectively held that summary judgment was
always appropriate unless the plaintiff presented not only a prima facie
case and evidence sufficient to show that the employer’s proffered legiti-
mate rationale was pretextual, but also additional evidence sufficient to
show actual discrimination. See Reeves, 530 U.S. at 146-47.
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Moreover, Andreassen did in fact take favorable action
toward Coghlan in 2000, only a year before the earliest
adverse employment decision, when he appointed Coghlan
mate rather than master of the Dynasty. It is undisputed that
Coghlan himself viewed the appointment as a favorable
employment action; the new job was on a much larger ship
and paid significantly more than the old job, and Coghlan was
pleased with the change. As Coghlan points out, however,
Andreassen declined to characterize the move as a “promo-
tion”; he preferred to call it a “transfer,” and in a literal sense,
it was not a promotion because Coghlan went from the rank
of master on the Katie Ann to the lower rank of mate on the
Dynasty. Coghlan argues that it is the decisionmaker’s per-
ception, not that of the employee, that controls whether the
same-actor inference arises.
[5] As an abstract proposition, this is doubtless true; for if
the decisionmaker did not perceive an employment action as
favorable, there would be no basis to assume an absence of
bias toward the employee. But the fact that we must look to
the decisionmaker’s perception does not mean that we are
bound by the decisionmaker’s label. The question is simply
whether the nature of the employment action, viewed from the
employer’s perspective, is such that it would have been
unlikely if the decisionmaker were truly biased against the
employee’s class. If it is, then the inference fairly arises. In
this case, whether or not Coghlan’s appointment was classi-
fied as a “promotion” in ASC’s internal discussion, it is clear
that Andreassen intentionally chose to appoint Coghlan to a
new, better-paid, more demanding position on a larger ship.
The favorable nature of the reassignment satisfies us that the
same-actor inference should arise.
Finally, Coghlan suggests that the same-actor inference is
just one more factor for the jury to consider in making its
decision and should not be used to grant summary judgment
to the defendant. That is the law in some circuits, and Cogh-
lan cites cases to prove it. See, e.g., Williams v. Vitro Servs.
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Corp., 144 F.3d 1438, 1443 (11th Cir. 1998) (“[I]t is the prov-
ince of the jury rather than the court . . . to determine whether
the inference generated by ‘same actor’ evidence is strong
enough to outweigh a plaintiff’s evidence of pretext.”). But it
is clearly not the law in this circuit, since Bradley itself used
the same-actor inference to affirm a grant of summary judg-
ment, taking the case away from a jury. See Bradley, 104 F.3d
at 272; cf. Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th
Cir. 1996) (affirming grant of summary judgment on the basis
of the same-actor inference); Lowe v. J.B. Hunt Transp., Inc.,
963 F.2d 173, 173-74 (8th Cir. 1992) (affirming grant of
directed verdict on the basis of the same-actor inference).
The same-actor inference is neither a mandatory presump-
tion (on the one hand) nor a mere possible conclusion for the
jury to draw (on the other). Rather, it is a “strong inference”
that a court must take into account on a summary judgment
motion. Bradley, 104 F.3d at 271. We must consider, then,
whether Coghlan has made out the strong case of bias neces-
sary to overcome this inference. It will be useful to consider
separately each of the incidents that Coghlan alleges consti-
tuted illegal discrimination.13
13We may deal at the outset with one of Coghlan’s contentions. Among
the reasons the district court gave for granting summary judgment was the
fact that “Andreassen is a naturalized U.S. citizen who has renounced his
Norwegian citizenship.” Coghlan argues that the district court thus “erred
in holding that a decision-maker’s citizenship controls whether he discrim-
inated against persons with the same citizenship.” Coghlan, however, dras-
tically overstates the reliance placed on Andreassen’s citizenship by the
district court. It did not hold that the decisionmaker’s adopted citizenship
“controls” the question of discrimination; it merely found citizenship to be
one relevant piece of evidence. We need not decide whether it was wrong
to do so, because no inference from Andreassen’s citizenship is necessary
to conclude that Coghlan has not met his burden of proof.
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C
1
[6] In 2001, while Coghlan was serving as mate on the
Dynasty, the ship’s master (Petursson) had to be temporarily
absent on two occasions. Each time, Andreassen appointed a
Norwegian (Hogseth) as the relief master (that is, the tempo-
rary replacement for the absent master) instead of Coghlan.
Coghlan argues that he was more qualified than Hogseth
because he had more experience both with the Dynasty and as
a factory-trawler master in general. Of course, the quality of
Andreassen’s business judgment is only relevant insofar as it
suggests that his decisions were explainable only as the prod-
uct of illegal discrimination. See Villiarimo v. Aloha Island
Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002). But in this case
there is another, much more plausible, reason for
Andreassen’s decision: Andreassen stated in his declaration
that his decision to appoint Hogseth as relief master was
based entirely on the recommendation of Frank Vargas, who,
in turn, stated in his declaration that he “strongly recom-
mended Jarl Hogseth to serve as Relief Captain” and disfa-
vored Coghlan because Vargas believed he had poor
leadership skills. Coghlan does not offer any evidence that
Andreassen’s decision was not based on Vargas’s recommen-
dation, and Coghlan testified that he does not believe that
Vargas harbors any sort of national-origin bias against him.
Thus, Coghlan has presented no evidence that would cast
doubt on this legitimate explanation of the decision to appoint
Hogseth as relief master, and so he cannot rebut the “strong
inference” of nondiscrimination that arises under the same-
actor rule.
2
[7] In November 2001, Andreassen removed Coghlan as
mate of Dynasty. At the same time, he demoted Petursson to
the mate position and appointed a Norwegian-born person
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(Knotten) as master. Coghlan argues that this is further evi-
dence of pro-Norwegian bias. It is virtually impossible to
credit Coghlan’s argument, however, because Andreassen
first offered the newly vacant master position to an American
of non-Norwegian heritage (Kraljevich). Coghlan argues that
this fact is no more than evidence against him to be evaluated
by the jury at trial. But we cannot see how any reasonable
jury could conclude that Andreassen was motivated by pro-
Norwegian or anti-American discrimination when his first
choice was to replace a Scandinavian master with an Ameri-
can one.14 The directive to change the leadership of the
Dynasty came originally from Michael Hyde, an American.
And Andreassen made his decision in consultation with Var-
gas, an American-born American citizen who Coghlan admit-
ted is not biased in favor of Norwegians.
[8] Moreover, the record suggests that ASC had legitimate
reasons for demoting Coghlan. Andreassen and Vargas
viewed the Dynasty as a poor performer, and its repair costs
were much higher in proportion to the total tonnage caught
than on the other vessels.15 Indeed, Coghlan himself agreed
that the vessel’s performance was poor and that some sort of
change was needed, though of course he did not think that his
own demotion was the right solution.
[9] As further evidence of ASC’s discriminatory intent,
Coghlan points to the fact that Andreassen simultaneously
removed American masters on two other ships and replaced
them with Norwegian-born masters. For two reasons, we find
14The fact that Coghlan’s demotion occurred as part of a more general
rearrangement in which his superior was also demoted makes his claim of
intentional bias even more difficult to credit.
15Coghlan argues that several ships had higher repair costs in absolute
terms. As ASC points out, however, it stands to reason that larger and
more complex ships will have higher repair costs than smaller, simpler
vessels. What is most relevant is the level of repair costs in proportion to
the amount of fish caught, and in those terms the Dynasty was easily the
most costly vessel.
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this evidence insufficient to rebut the same-actor inference.
First, this “pattern” is hardly a pattern at all once one consid-
ers the fact that the master position on the Dynasty was first
offered to an American. Second, even a pattern of three
replacements is, under our precedent, too small a sample to
constitute meaningful statistical evidence. See Aragon, 292
F.3d at 663-64 (holding that “the fact that three of the four
casuals singled out for lay off that night were white” was not
deserving of “much weight” because of the small sample
size); Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072,
1076 (9th Cir. 1986) (holding that “statistical evidence
derived from an extremely small universe . . . has little predic-
tive value and must be disregarded” (internal quotation marks
omitted)); Shutt v. Sandoz Crop Prot. Corp., 944 F.2d 1431,
1433 (9th Cir. 1991); see also LeBlanc v. Great Am. Ins. Co.,
6 F.3d 836, 848-49 (1st Cir. 1993) (holding that “a small sta-
tistical sample carries little or no probative force to show dis-
crimination” and noting that statistical evidence is generally
less relevant in disparate treatment cases than in disparate
impact cases because the focus is on the treatment of an indi-
vidual rather than on an overall pattern); Aragon, 292 F.3d at
663 n.6 (approvingly citing LeBlanc for that point). We con-
clude that Coghlan has not presented sufficient evidence to
rebut the same-actor inference with regard to his removal as
mate of the Dynasty.
3
The final incident that Coghlan claims is discriminatory
occurred in 2002, when Andreassen offered Coghlan the posi-
tion of mate on the Katie Ann. Coghlan had previously been
master on that ship, and he claims that Andreassen’s decision
to appoint the Norwegian-born Hogseth as master was based
on Andreassen’s pro-Norwegian bias.
[10] It is questionable whether this should even be consid-
ered a separate act of discrimination from Coghlan’s removal
as mate of the Dynasty: upon that removal, instead of simply
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firing him outright, ASC appointed him as mate of the Katie
Ann. In any case, however, all the legitimate reasons for
removing Coghlan as mate of the Dynasty also apply to not
making him master of the Katie Ann. Again, Coghlan has not
presented evidence sufficient to meet the burden imposed by
the same-actor inference.16
III
[11] Employment discrimination cases inevitably present
difficult problems of proof, precisely because we cannot peer
into the minds of decisionmakers to determine their true moti-
vations. All we can do is apply the evidentiary framework
developed in the decisions of the Supreme Court and our own
court. In this case, Coghlan has not presented evidence suffi-
cient to defeat the same-actor inference with regard to any of
the decisions he challenges. The district court was therefore
correct to grant summary judgment in favor of ASC.
AFFIRMED.
16Coghlan also points us to the testimony of Brooks Stevens, an
American-born employee of ASC, who stated that he believes ASC gives
preferential treatment to Norwegians. Stevens based his belief on the fact
that he makes approximately the same salary as Lars Oterhals, a Norwe-
gian employee, even though Oterhals is only a fishmate whereas Stevens
is simultaneously both a mate and a fishmate. Upon further questioning,
however, he admitted that he was unsure that the salaries were due to
Oterhals’s Norwegian origin. Michael Hyde testified that Brooks Stevens
had stated to him that “he wasn’t sure the Norwegians as a whole, but cer-
tainly certain Norwegians he thought in the past had received special treat-
ment.” Hyde also explained that the salary issue that concerned Stevens
was the result of ASC’s policy that “there are some boats where you have
a person serving as both master and fishmaster . . . and yet if you serve
two functions, you don’t get paid significantly more than if you were only
serving one function.” Coghlan presents no evidence to suggest that
Hyde’s description of ASC’s salary policy was inaccurate. His evidence,
then, reduces to Stevens’s mere theory, unsubstantiated by any factual
support whatsoever in the record, that his pay may have been related to
his American origin. This speculation adds little to Coghlan’s case.
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