NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BILL BARRIER,

Plaintiff

- Appellant,

v. CITY OF THE DALLES, a municipality,

Defendant

- Appellee. No. 21

- 35305
D.C. No. 3:18

- cv - 01084

- AC

MEMORANDUM *

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding Submitted March 11, 2022 * * Portland, Oregon Before: GRABER, BEA, and M. SMITH, Circuit Judges. Appellant Bill Barrier appeals the district court’s grant of summary judgment in favor of the City of T he Dalles on Barrier’s claim of workers ’ compensation

related employment discrimination pursuant to Or egon Rev ised Stat ute s (“O

. R

. S

. ”)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

MAR 21 2022
MOLLY C. DWYE R, CLERK U.S. COURT OF APPEALS2

section 6 59A.040

. 1 Barrier also challenges the exclusion, as inadmissible hearsay, of interrogatory responses of nonparty Joseph Greiman, responses that were made in a previous workers ’ compensation

- related employment discrimination lawsuit against the City. For the following reasons, we affirm. The parties are familiar with the facts of the case, so we do not recite them
here , save when necessary

. In federal court, claims of employment discrimination pursuant to O.R.S. section 659A are analyzed under the three

- part burden shifting
framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). Dawson v. Entek Int’l , 630 F.3d 928, 934

– 35 (9th Cir. 2011)

. Barrier argues that the district court erred in ruling that Barrier failed to raise a genuine dispute as to whether the City’s legitimate reason for terminating him was pretext ual

. Barrier points to two pieces of evidence as creating a ma terial dispute of
fact: ( 1) the proximity of timing between his fourth workers ’ compensation claim (February 13, 2017) and his termination (May 22, 2017), and ( 2) the excluded interrogatory responses of Greiman submitted in an earlier workers ’ compensation

related employment discrimination lawsuit against the City

. To the extent the district court excluded Greiman’s interrogatory responses

1 Jurisdiction over this claim was supplemental

— federal question jurisdiction in the district court was satisfied by the fact that Barr ier also asserted a claim of discrimination arising under the Americans with Disabilities Act (“ADA”). Barrier does not appeal the district court’s grant of summary judgment in favor of the City on the ADA claim.3

because they are hearsay, it erred. See Sandoval v. County of San Diego , 985 F.3d 657, 666 (9th Cir. 2021). Any error was harmless, however, because we affirm the district court’s alternative ruling that the interrogatory responses do not raise a genuine dispute regarding whether the City’s proffered reason for terminating Barrier was pretextual , as th e interrogatory res ponses concerned a materially
different lawsuit that was filed seven years prior to the filing of the instant case. T he temporal proximity between when Barrier filed his fourth workers’ compensation claim and when he was fired, without more, is insufficie nt to show pretext.
Hashimoto v. Dalton , 118 F.3d 671, 680 (9th Cir. 1997). M oreover, the persuasive value of the temporal proximity evidence is undercut by the fact that Barrier’s supervisor began preparing a disciplinary memo concerning Barrier weeks before
Barrier filed his fourth workers ’ compensation claim . This disciplinary memo was prepared in response to complaints received in December 2016 and January 2017
that Barrier had been “rude and unprofessional” to City residents in responding to a

snow storm

. This memo summarized Barrier ’s many disciplinary infractions while working for the City, includ ing a November 2013 incident in which Barrier threatened a City financial advisor that if Barrier’s retirement portfolio did not perform better, Barrier would bring a gun to their next meeting

. In response to this incident, Barrier was put on notice that any future violation of “any City policy, including the Appropriate Conduct policy, will be grounds for termination of your4

employment with the City.”
AF FIRMED .