NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLAUDE BROWN,

Plaintiff

- Appellant,

v. KING COUNTY,

Defendant

- Appellee. No. 18

- 35168
D.C. No. 2:16

- cv - 01340

- TSZ

MEMORANDUM *

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding Argued and Submitted November 7, 2019

Seattle, Washington Before: GOULD and NGUYEN, Circuit Judges, and PRESNELL, * * District Judge.
Plaintiff

- Appellant Claude Brown (“Brown”) appeals the district court’s grant of summary judgment dismissing his racial discrimination and retaliation claims under 42 U.S.C. § 1981 and the Washington Law Against Discrimination

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

- 3.

** The Honorable Gregory A. Presnell, United States District Judge for the Middle District of Florida, sitting by designation. 

# FILED

AUG 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

(“WLAD”). Brown, who is Blac k, alleges his employer , Defendant

- Appellee King County , discriminated against him on the basis of his race and retaliated against him for filing discrimination and retaliation complaint s with King County’s Office of Civil Rights. 1 We deferred submission of the case pending the Supreme Court’s
decision in Comcast Corp. v. Nat iona l Ass ociatio n of African Am erican

- Owned
Media , 140 S. Ct. 1009 (2020). We now review de novo the district court’s grant of summary judgment. Whitman v. Mineta , 541 F.3d 929, 931 (9th Cir. 2008). We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand the
discrimination and retaliation claims for further proceedings

. 1. Brown claims King County discriminated against him on the basis of his race by r ejecting his application s for the Rail

- Supervisor

- in

- Training (“RSIT”) position in the 2012 and 2014 promotion cycles and by removing him from the Acting Technical Trainer (“ATT”) position

. 2 Because Brown aims to show discrimination through indirect proo f, the McDonnell Douglas bur den

- shifting framework applies. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802

– 04 (1973)

. To survive summary judgment, Brown must establish a prima facie case of

1 Because the parties are familiar with the facts and procedural history of the case, w e recite only those facts necessary to decide this appeal. 2 Although Brown alleged other instances of discrimination in his complaint, on appeal he limits his discrimination claims to King County’s denial of his RSIT promotions and his removal from the ATT position.3

racial discrimination by showing : “(1) [he] belongs to a protected class, (2) he was performing according to his employer’s legitimate expectations, (3) he suffered an adverse employment action, and (4) similarly situated employees were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination .” Reynaga v. Roseburg Forest
Prods. , 847 F.3d 678 , 691 (9th Cir. 2017)

. For Brown’s § 1981 discrimination claim, he must also show “that, but for race, [ he ] would not have suffered th e loss of a legally protected right.” Comcast , 140 S. Ct. at 1019. And for his WLAD discrimination claim, he must show that his race was a “substantial factor” in the adverse employment action. Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas Cty. , 404 P .3d 464, 47 1 (Wash. 2017). We require “ very little evidence to survive summary judgment in a discrimination case, because the ultimate question is one that can only be resolved through a searching inquiry

— one that is most appropriately conducted by the
fa ctfinder, upon a full record.” Reynaga , 847 F.3d at 691 ( quotation omitted ) ; see also Mikkelsen , 404 P.3d at 473.
Brown has shown that he is a member of a protected class , that he applied and was qualified for the RSIT position and the ATT position , that he was rejected from the RSIT position repeatedly , and that he was prematurely removed from the ATT posit ion despite performing his work satisfactorily

. Brown has further4

alleged : the former president of his union told him that King County would never hire a Supervisor “with braids”; Brown and several other minority employees “were informed that [they] were not qualified to test for the [ 2011 RSIT] position”;
Brown was informed that he was “not qualified to be train ed ” for the 2012 RSIT posi tion despite finishing fourth in the testing behind the top three candidates who were selected for the program ; and Brown’s 2014 RSIT application was denied on the ground that it was incomplete, even though he had previously submitted the

same application and it had never been denied on that basis bef ore
. Several o ther minority rail operators submitted declarations that King County’s hiring system

was improperly rigged on the basis of race

. B rown has met the minimal burden required to state a prima facie case of
discrimination under federal and state law by showing that the circumstances surrounding King County’s rejection of his RSIT promotion application s and removal from the ATT position give rise to an inference of discrimination.
Accordi ngly, we REVERSE and REMAND the discrimination clai m s. Because
Brown has demonstrated a prima facie case, the burden shifts to King County to provide a legitimate, non

- discriminatory reason for the adverse employment
actions.
2. Brown also claims King County retaliated against him for filing
discrimination and retaliation complaint s with King County ’s Offi ce of Civil5

Rights. To establish a prima facie case of retaliation under § 1981 and the WLAD,
Brown must demonstrate that “[] he engaged in protected activity , that []he suffered

a materially adverse action , and that there was a causal relationship between the

two. ” Westendorf v. W. Coast Contractors of Nev., Inc. , 712 F.3d 417, 422 (9th Cir. 2013). For Brown’s § 1981 retaliation claim , he must show that the protected activity was a “ but

- for ” cause of the mater ially adverse action, id. , a nd for his
WLAD retaliation claim , he must show that the protected activity was a

“ substantial factor ” in the adverse action, Allison v. Hous. Auth. , 821 P.2d 34, 37 (Wash. 1991) (en banc). Brown engaged in protected activity when he filed his discrimination and

re taliation complaints with King County

. Brown has shown that, after he filed the
discrimination complaint in March 2013 , King County selected him for the ATT position in late June 2013 and then removed him from the position in early July
2013. 3 One of the two people who decided to remove Brown from the position
knew at the relevant time that Brown “had raised issues of discrimination in the past,” though she was “not sure” whether she knew Brown had filed a discrimination complaint. Brown has further s hown that, one year after he filed the discrimination complaint and four months after he filed the retaliation complaint ,

3 Brown also alleges that King County retaliate d against him for filing the discrimination complaint by suspending him for a train infraction, but we AFFIRM the district court’s grant of summary judgment as to that claim.6

King County disqualified his application for the 2014 RSIT promotion as “incomplete , ” even though he had submitted the same applicatio n in prior years without any problems. There is a triable issue as to whether the person who rejected Brown’s application knew about his discrimination complaint at the
relevant time.
B rown has stated a prima facie case of retaliation under federal and state law by showing facts that support a plausible inference that his protected activity was a
but

- for cause of his removal from the ATT position and the disqualification of his
2014 RSIT application

. The temporal p roximity between Brown’s protected activity and these adverse actions, coupled with the decisionmakers’ knowledge of that activity, is sufficient to satisfy Brown’s burden at the first step of the McDonnell Douglas framework. Accordingly, we REVERSE and REMAND
Brown’s retaliation claims for further proceedings.
AFFIRM ED IN PART AND REVERSE D AND REMAND ED IN
PART.