FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA HEISSER METOYER, 

Plaintiff-counterdefendant-Appellant,

v. No. 04-56179

LEONARD CHASSMAN, an individual; D.C. No.

JOHN MCGUIRE, an individual,  CV-03-08438-JFW

Defendants-Appellees,

OPINION

SCREEN ACTORS GUILD, INC., a

corporation,

Defendant-counterclaimant-Appellee. 

Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Argued and Submitted

June 6, 2006—Pasadena, California

Filed September 26, 2007

Before: Dorothy W. Nelson, Johnnie B. Rawlinson, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge D.W. Nelson;

Partial Concurrence and Partial Dissent by Judge Bea

13139
COUNSEL

Marco Simons, Hadsell & Stormer, Inc., Pasadena, California,

for the appellant. 

Anne Richardson, Hadsell & Stormer, Inc., Pasadena, California, for the appellant.

Rick Hicks, Hicks & Hicks, Beverly Hills, California, for the

appellant. 

Eugenia Hicks, Hicks & Hicks, Beverly Hills, California, for

the appellant.

Catherine B. Hagen, O’Melveny & Myers, LLP, Newport

Beach, California, for the appellees. 

Eric J. Amdursky, O’Melveny & Myers, LLP, Newport

Beach, California, for the appellees. 

Renee M. Spigarelli, O’Melveny & Myers, LLP, Newport

Beach, California, for the appellees. 

METOYER v. SCREEN ACTORS GUILD 13143
Ryan W. Rutledge, O’Melveny & Myers, LLP, Newport

Beach, California, for the appellees. 

OPINION

D.W. NELSON, Senior Circuit Judge: 

In May, 2001 the Screen Actors Guild (“the Guild”) fired

Dr. Patricia Heisser Metoyer (“Metoyer”), an AfricanAmerican, after PricewaterhouseCoopers (“PwC”) concluded

Metoyer authorized payment in excess of $30,000 of funds

available for Guild use to friends, business partners, and her

husband’s production company. Metoyer responded by bringing multiple claims against the Guild, including federal race

discrimination and retaliation claims under 42 U.S.C. § 1981

and state law discrimination claims under the California Fair

Employment and Housing Act (“FEHA”). The district court

granted summary judgment in favor of the Guild on all

claims. We reverse in part and find that Metoyer has raised a

triable issue of fact on all but one of the federal and state race

discrimination and retaliation claims.1

I. FACTUAL AND PROCEDURAL BACKGROUND2

A. The Hiring Process 

In March 1998, Metoyer applied for employment with the

Guild listing the position she desired as “Affirmative Action

1

In a separate memorandum disposition, we affirm the district court’s

(1) denial of plaintiff’s motion for reconsideration, and (2) denial of plaintiff’s motion to re-tax costs. We also dispose of defendant’s argument that

plaintiff’s employment contract was void and, therefore, as a matter of law

cannot sustain plaintiff’s 42 U.S.C. § 1981 claims. 

2

In our statement of the facts, we draw all reasonable inferences in favor

of Metoyer. See, e.g., Cornwell v. Electra Cent. Credit Union, 439 F.3d

1018, 1022 n.1 (9th Cir. 2006). 

13144 METOYER v. SCREEN ACTORS GUILD
Director.” At that time, the Guild did not have an “Affirmative Action Director” position; it had two “Executive Administrator of Affirmative Action” positions, one in New York

City and one in Hollywood.3 Metoyer was contacted by Kathryn Nirschl (“Nirschl”), the Guild’s Executive Administrator

of Human Resources and invited to interview. Nirschl

informed Metoyer that although the title of the position was

that of “executive administrator”, she would in fact be the “director of affirmative action.” Nirschl assured Metoyer that the

salary would increase up to $89,000 once the position

changed to that of “director.” 

Metoyer also interviewed with John C. Barbadian, the

national director of human resources at the time, who told her

that because the affirmative action department was in such

disarray at SAG, the Guild needed a national director and that

her title would be changed to that of “director.” Finally, during the interview with Richard Nasur, president of the

national board of directors of SAG, he referred to the position

that Metoyer was applying to as that of “director.” 

On April 27, 1998, after several rounds of interviews, Nirschl sent Metoyer a letter stating:

It is a pleasure to confirm an offer of employment

to you on behalf of the Screen Actors Guild. The

Guild is a dynamic organization providing new challenges and increasing responsibility. 

Your current offer of employment is for the position of Executive Administrator, Affirmative Action

with an annual salary of $65,000 payable on a

weekly basis. This assignment will begin on Tuesday, May 26, 1998. As an employee of the Screen

Actors Guild, you are entitled to an extensive bene3

“SAG Hollywood” was considered the national headquarters and all of

the national director positions were in this office. 

METOYER v. SCREEN ACTORS GUILD 13145
fits package including health, dental, vision, a pension plan, a credit union, and many other valuable

benefits. Your eligibility for these benefits will commence August 1, 1998. 

In a letter sent to Nirschl on May 6, 1998, Metoyer confirmed

her “acceptance of the position of Executive Administrator,

Affirmative Action, with all the terms and conditions as stated

in [Nirschl’s] letter dated April 27, 1998.” 

Throughout her tenure at the Guild, the nameplate on

Metoyer’s door read, “Patricia Heisser-Metoyer National

Executive Director Affirmative Action” and many of her coworkers and SAG members referred to her as the national

director. Soon after Metoyer was hired, Linda Shick, the new

National Director of Human Resources who replaced Barbadian, again informed her that the Guild planned to appoint 30

directors and that her position of national director of affirmative action would be one of them. Within a few months, all

of the planned appointments to national director positions

were granted except for Metoyer’s. 

In August, 1999 Metoyer petitioned the Guild’s Senior

Staff to create a National Director of Affirmative Action position. John McGuire (“McGuire”), then the Guild’s Acting

Executive National Director, denied her request “because the

Affirmative Action department was not structured to function

nationally and, consequently, there was no need for a national

director.” Schick explained to Metoyer that SAG had never

had a person of color higher than the position she currently

held and that it would be very difficult for senior staff to

accept new ways. Specifically, she stated, “There are no people of color on senior staff, and it’s very unlikely that there

will be.” 

B. Metoyer’s Role in Relaying Discrimination

Complaints by SAG Employees

Almost immediately after Metoyer was hired, she began to

be approached by minority employees within the Guild with

13146 METOYER v. SCREEN ACTORS GUILD
complaints of racial discrimination. Several minority employees complained to Metoyer that the Guild’s senior staff,

including Schick, Leonard Chassman, Metoyer’s immediate

supervisor and the Guild’s Hollywood Executive Director,

and McGuire, (collectively “senior management”), were discriminating on the basis of race in making promotions, assigning work and pay. Metoyer assiduously related these

complaints to senior management and others throughout her

time at the Guild. 

Schick and Chassman responded to these complaints with

blatantly racist comments. In response to complaints that

African-Americans were being kept in low-paying jobs, Shick

stated: “I’m keeping them there because I want to keep an eye

on them because black people like to party and eat and don’t

do their work.” Chassman’s response was: “They ought to be

glad they have a job.” In another meeting sometime in 1998

in which Metoyer put forth complaints of minority employees, Chassman responded, “All of these people are lazy and

malingerers. Is that something special with AfricanAmericans that they have to socialize all the time and they are

never happy? They should be happy to have this job.” Many

of the employees told Metoyer that they were retaliated

against after she brought their complaints to the attention of

senior management. 

Schick warned Metoyer that she would not go far in the

organization because she was too outspoken and SAG senior

management did not tolerate people of color talking back the

way she did. Schick commented, “You talk more than other

black people here. The rest of them are like — they’re like a

tribe or something. They hang around together, and they don’t

talk. You’re unusual. You talk too much.” Metoyer became

concerned about her job because of the actions of senior management against other minority employees who brought complaints. Metoyer asked Chassman whether she was “too

outspoken” and he responded affirmatively, explaining that

METOYER v. SCREEN ACTORS GUILD 13147
McGuire did not like her because she was too outspoken in

attempting to implement affirmative action policies. 

In 2000, SAG cut Metoyer’s budget and there was an

increase in racial discrimination complaints by SAG employees which culminated in the circulation of an anonymous letter written by SAG minority employees. Chassman accused

Metoyer of “fomenting” discontent and unrest amongst SAG

employees regarding racial discrimination and encouraging

them to come forward with their race discrimination complaints. 

C. Metoyer’s Findings of Irregularities in IACF Grants

In addition to relaying complaints of racial discrimination,

Metoyer discussed with senior management the concerns of

guild members and herself about irregularities in several

IACF grants. In relevant part, Metoyer’s declaration states:

From the time I was hired and throughout my

employment, I regularly questioned the allocation of

funds on several grants that are mandated to have

Affirmative Action components and projects in

them. I continuously complained to SAG senior staff

about irregularities in certain IACF grant funds

(Brakefield, Ward, and Jensen projects) for the following reasons: 

A. Shawna Brakefield: Ms. Brakefield was paid

for travel for staff and her husband out of IACF

funds and was an independent contractor who was

given a suite of offices at the Guild rent-free and

access to telephones. She was also paid $85,000 as

a salary while as an independent producer [she]

entered competitions at festivals with her personal

projects while she was representing the Guild (obvious conflict of interest). She also paid for her husband’s travel out of these funds. The Board of

13148 METOYER v. SCREEN ACTORS GUILD
Directors complained that she never included protected group members in the festivals for outreach

. . . only her husband and her staff. She was never

audited in spite of numerous complaints. She

received in excess of $1,000,000 without being

audited and did not account for the spending of the

money appropriately. She also spent IACF money to

print several thousand pictures of herself as [a] Charlie’s Angel and her staff and mailed them to promote

her personal production company, Brakefield Productions. IACF funds are primarily to promote affirmative action activities. I complained to Leonard

Chassman and Jonn McGuire because members

asked me to complain. Nothing was ever done. 

B. Sharon Jensen: Ms. Jensen was responsible

for the “Non-Traditional Casting” project which was

funded for 10 years by SAG and IACF, and was

never audited. She was funded to set up a database

for members — the same type SAG provides for free

through my department. In 1992, she had 4,000

members and non-member stage actors and no protected group members. Members complained and

asked her to submit an accounting of the grant

money for the past 10 years. She never submitted a

report to them and received another $96,000 lump

sum payment in September 2000. I complained to

Leonard Chassman and John McGuire because

members asked me to complain on their behalf.

Nothing was ever done. 

C. Paul Ward: Mr. Ward was an independent

contractor who was paid over $200,000 to do a feasibility study which was to be completed in one year.

However, after three years, Mr. Ward never submitted a report. IACF funds are to go to educational

institutions or 501(c)(3) organizations, not to independent contractors. Members complained to me, I

METOYER v. SCREEN ACTORS GUILD 13149
reported their complaints to John McGuire and

Leonard Chassman. Nothing was ever done. 

While affirmative action IACF grants were under

very close scrutiny, these other grants went for years

without any scrutiny or accountability whatsoever.

Brakefield, Ward and Jensen were receiving large

grants from IACF year after year while the affirmative action department, for which IACF had allocated funds for affirmative action activities, was

being gutted. John McGuire was a senior staff member, a trustee on the board of IACF, and a mentor to

these three grant recipients. 

She informed the senior staff that she intended to take her

findings to SAG’s national board. 

D. The Fraudulent Equal Employment Opportunity

Report (EEO-1)

In fall 2000, an employee in the Guild’s Human Resources

department, Valerie Quetel (“Quetel”), suspected Shick was

preparing a fraudulent disclosure to the Equal Employment

Opportunity Commission (the “EEO-1 Report”). In Quetel’s

view, the EEO-1 report overstated the number of racial minorities the Guild employed in high-level positions. Quetel told

Metoyer the EEO-1 report was fraudulent, and provided

Metoyer with a copy of the report. Metoyer compared the

EEO-1 report’s listing of high-level employees with an organization chart, and concluded that the Guild was, in fact, overstating the number of racial minorities in high-level positions.

At a department head meeting in late 2000 attended by

McGuire and Chassman, Metoyer confronted Shick about the

EEO-1 Report. During the meeting, Chassman sided with

Shick and criticized Metoyer as being “out of line.” Quetel’s

declaration states that after the meeting she heard Shick

repeatedly say, “[t]hat bitch. I’m going to get that bitch.”

13150 METOYER v. SCREEN ACTORS GUILD
After the meeting, Metoyer met privately with Chassman and

told him that she planned to disclose the fraudulent EEO-1

Report to the Guild’s plenary council, when it next met in

April 2001. As a result of the budgets cuts in her department

in 2000, Metoyer lacked the money to hire an employee to

help her administer IACF grants. She therefore entered into

written agreements with Loyola Marymount University

(“LMU”), whereby LMU agreed to hold grant funds in “escrow” for Metoyer. LMU agreed to pay out “escrowed” grant

funds to researchers, project coordinators, and vendors, upon

Metoyer’s order. 

E. Investigation into Metoyer’s Use of IACF Funds 

Between July and September 2000, Metoyer caused the

Guild to transfer approximately $120,000 in IACF grant funds

to LMU by ordering the Guild to pay several invoices on

LMU letterhead and listed LMU as the recipient of the funds.

Some of these invoices were created and submitted by LMU,

others by Metoyer. Metoyer told Chassman of her plan to

escrow the funds at LMU and received his approval. 

In November or December 2000, Sofia Banks, a temporary

employee at the Guild, discovered a suspicious-looking

invoice and check request in Metoyer’s box. The check

request was signed by Metoyer, and ordered a payment of

$10,736 in Guild funds to LMU. In describing the use to

which the funds were put, both documents listed seven events

purportedly scheduled by the Affirmative Action staff in

August 2000. Banks did not recall any of the seven events

taking place. Banks showed the invoice and check request to

another employee in the Affirmative Action department, Sylvia Henriquez; Henriquez shared Banks’ suspicion that the

seven events listed on the invoice and check request had never

taken place. Henriquez, in turn, relayed her suspicion to

Elaine Gram, an Affirmative Action department staff member. Gram knew the seven events had not occurred because,

as a member of the Affirmative Action staff, she would have

METOYER v. SCREEN ACTORS GUILD 13151
known about events planned by her department. Gram, Henriquez, and Banks decided to take the matter to the Guild’s inhouse counsel, Vicki Shapiro. 

Gram turned over the invoice and check request to Shapiro.

Because the invoice and check request transferred funds to

LMU, and one of Metoyer’s employees, Celine Bae, had

worked at LMU during the month of August, Gram found

Metoyer’s check request questionable. In addition to giving

the invoice and check request to Shapiro, Gram informed Shapiro that Metoyer had earlier escrowed IACF grant funds with

LMU, as described above. 

Shapiro contacted Chassman, and together they approached

McGuire, who in addition to being the Guild’s highestranking employee, was a member of IACF’s Board of Trustees. Based on the invoice, check request, and Gram’s statement that Metoyer had escrowed IACF grant funds with

LMU, McGuire was concerned that Metoyer might have mishandled IACF grant funds. In January 2001, McGuire, after

“consultation” with Chassman, turned the invoice over to the

IACF, and informed Bruce Dow, at the IACF, of his suspicions. On January 9, 2001, McGuire met with Dow, Leo Geffner (the Guild’s outside counsel), and three other IACF

trustees. McGuire informed all present of the invoice and the

Guild’s suspicions. 

On January 18, 2001, the IACF held a regularly-scheduled

board meeting, where the trustees discussed, in general terms

and without naming Metoyer, the need for greater accountability of grant funds. During a teleconference on January 23,

2001 the board voted to retain PwC to investigate all of its

outstanding grants.4 Metoyer was not invited to this meeting

or provided an opportunity to explain how she was properly

4This was the first audit that had been done to anyone in the history of

SAG. Ultimately, PwC would investigate 26 of the Guild’s IACF grants.

13152 METOYER v. SCREEN ACTORS GUILD
administering the IACF grants through the partnership with

LMU. 

By March 19, 2001, PwC had nearly completed its investigation, finding Metoyer had ordered the Guild to escrow

roughly $120,000 in IACF grant funds with LMU and preliminarily concluding Metoyer ordered LMU to pay two of her

current employees, Peter Nguyen and Celine Bae; one former

employee, Rachelle Bolding; and her husband IACF grant

funds without disclosing their identities to the Guild.5

(Text continued on page 13155)

5PwC’s investigation focused on four payments: 

Payment #1 — $27,155 in IACF Grant Funds for the Skills Bank

Reorganization

On July 25, 2000, Metoyer authorized the transfer of $27,155

from the Guild’s IACF trust account to LMU for LMU’s work on

the Skills Bank Reorganization project. Metoyer’s undisputed

testimony is that she caused LMU to pay $5,000 of these funds

to Peter Nguyen for “legal consultation services.” At the time,

Nguyen was a Guild employee. Nguyen received this payment

for researching whether it was legal of Metoyer to continue using

a Skills Bank, which helped her find jobs for minority actors.

Nguyen concluded the Skills Bank was legal and orally presented

his conclusion to the Guild. 

PwC found this payment to be improper because (1) Nguyen

was not a licensed attorney and (2) it could not verify that

Nguyen did anything to earn the money. 

Payment #2 — $20,000 in IACF Grant Funds for the “Casting

the American Scene” and “Performers with Disabilities” Projects 

On September 14, 2000, Metoyer submitted two check

requests to the Guild for a total of $20,000 in IACF grant funds.

On September 21, 2000, Metoyer approved payment of her own

check requests, thereby causing the Guild to transfer $20,000 in

IACF grant funds to LMU. The check requests Metoyer submitted to the Guild indicated the purpose of the payment was for a

“research coordinator” and “research associate” on the “Casting

the American Scene” and “Performers with Disabilities” grants,

respectively. The check request, however, did not include the

identity of either the research coordinator or the research associate. 

METOYER v. SCREEN ACTORS GUILD 13153
On October 30, 2000, with Metoyer’s authorization, LMU paid

this same $20,000 to Bolding, a friend and former employee of

Metoyer at the Guild. PwC concluded that this payment was

improper because (1) Bolding was Metoyer’s business partner in

an event-planning firm, PRC, which derived its name from the

first initials of Patricia Metoyer, Rachelle Bolding, and Celine

Bae (2) Metoyer’s check requests to the Guild did not identify

Bolding as the recipient, and (3) there was no documentation that

Bolding did any work for the $20,000. 

Metoyer disputes PwC’s conclusion that Bolding was her business partner and the suggestion Bolding was not required to perform any work for the $20,000 payment. There is no dispute,

however, that (1) the ‘P” in PRC was derived from Metoyer’s

first name, (2) Metoyer contributed several hundred dollars to

PRC’s startup, and (3) the check requests Metoyer submitted to

the Guild did not identify Bolding as the recipient of the grant

funds. Likewise, there is no dispute that Bolding used the

$20,000 payment to fund PRC’s startup. 

Payments #3 and #4 — $10,736 of Guild Funds and $2,197 of

IACF Grant funds to LMU on the “Family Fun Fest”

On or about August 9, 2000, Metoyer ordered Bolding to

create an invoice from LMU charging the Guild $10,736 for

seven events that did not take place due to a Guild strike.

Metoyer then ordered payment of $10,736 in Guild funds to

LMU based on a check request listing these same seven events.

Metoyer ordered LMU to disburse this $10,736 to vendors who

put on the Family Fun Fest she put on in lieu of the cancelled

events. Specifically, Metoyer ordered LMU to pay Bae, a Guild

employee, $2,599 for her work planning the Family Fun Fest picnic. At the time, Bae was also drawing her regular salary from the

Guild. Metoyer also ordered LMU to pay $2,500 to Patois Productions for arranging entertainment at the Family Fun Fest.

Although not apparent on the face of the invoice submitted to

LMU, “Patois Productions” is Metoyer’s husband’s production

company; $500 of the $2,500 payment went directly to Metoyer’s

husband as a finder’s fee. 

The $10,736 in Guild funds transferred to LMU on the basis

of the invoice Metoyer ordered Bolding to fabricate did not cover

the total cost of the Family Fun Fest. Accordingly, LMU sent

13154 METOYER v. SCREEN ACTORS GUILD
PwC also found the payments to Nguyen and Bolding questionable because it found no documentation indicating they

had provided anything of value to the IACF or the Guild in

exchange for their respective payments. PwC sent a report

containing these preliminary conclusions to Bruce Dow at

IACF, who then told McGuire, Chassman, and Geffner of

PwC’s findings. 

On March 22, 2001, Metoyer attended a meeting with

members of senior management including Chassman,

McGuire, Bruce Dow, Alice Ortega and two individuals she

Metoyer an itemized invoice for the total cost of the Family Fun

Fest. This invoice showed the $2,599 to Bae, the $2,500 to Patois

Productions, payments to persons unrelated to Metoyer, and an

outstanding balance of $2,197 for Family Fun Fest expenses. To

avoid submitting this invoice to the Guild, Metoyer personally

fabricated an invoice for $2,197 from LMU for a “reception for

Dr. George Gerbner” by pasting this description on LMU letterhead. No such reception for Dr. Gerbner occurred. Rather,

Metoyer explains Dr. Gerbner, despite not being in attendance,

was honored at the Family Fun Fest. Dr Metoyer then prepared

a check request ordering the Guild to pay $2,197 to LMU out of

the IACF trust account to cover the balance of the Family Fun

Fest expenses. 

PwC concluded the payment to Bae was improper because (1)

Bae “appeared to have received double compensation . . . [with]

Dr. Metoyer’s approval and assistance” and (2) Metoyer used

false invoices to cause the Guild to transfer the money to LMU.

Metoyer claims the double payment was proper because Bae was

using “comp time” when she worked on the Family Fun Fest.

Metoyer, however, admits telling Bolding to fabricate the first

invoice and that she personally fabricated the second. 

PwC concluded the payment to Patois Productions was

improper because (1) Metoyer used false invoices to hide the

payment from the Guild, and (2) Metoyer never submitted the

Patois Productions invoice to the Guild’s accounting department.

Here, there is a triable issue of fact as to whether the Guild’s

accounting department received the Patois Production invoice

because the invoice bears a time stamp that Metoyer states is the

same as that used by the Guild’s accounting department. 

METOYER v. SCREEN ACTORS GUILD 13155
was introduced to for the first time as representatives of PwC.

Metoyer was told that the meeting was set up so that she

could discuss her complaints about ongoing racial discrimination, the fraudulent EEO-1 report and the irregularities she

found in the IACF funding. Instead of being allowed to

express her concerns, Metoyer was “cross-examined” by the

two PwC auditors about her use of IACF funds. This interview was a violation of a SAG protocol that, if at any time

there was a question about a grant Metoyer was administering, she would be contacted by Alicia Ortega of the IACF

with specific questions. This was the process followed on

prior occasions in connection with Metoyer’s grant proposal.

Nevertheless, Metoyer cooperated. Over the course of several

hours, the auditors asked Metoyer about the transactions in

question and presented her with copies of the relevant

invoices and check requests. Metoyer acknowledged escrowing IACF grant funds with LMU and authorizing LMU to disburse both Guild and IACF funds to two current Guild

employees, one former Guild employee, and her husband’s

production company. Metoyer also admitted fabricating

invoices on LMU letterhead that had the effect of concealing

from the Guild the identity of those receiving Guild funds and

IACF grant funds. 

During the interview, Metoyer complained to McGuire of

race discrimination and reiterated complaints that Brakefield,

Jensen, and Ward were misusing funds but had never been

audited. Following the meeting, McGuire was prepared to terminate Metoyer’s employment immediately. He decided,

however, to suspend Metoyer with pay, until he could investigate her complaints of race discrimination and harassment. He

retained a lawyer from O’Melveny & Myers to do so.

F. Termination of Metoyer’s Employment with SAG 

The next day, March 23, 2001, Metoyer was summoned to

McGuire’s office regarding a “personnel matter.” When

Metoyer arrived, Chassman was present. Metoyer asked to

13156 METOYER v. SCREEN ACTORS GUILD
consult with her attorney before continuing. Later that day,

Chassman delivered a letter suspending Metoyer’s employment with pay. The suspension prevented Metoyer from

speaking at the April, 2001, plenary at which time she

planned to voice her concerns about the chronic race discrimination complaints against Senior Staff, the fraudulent EEO-1

reports, the Brakefield, Jensen, and Ward IACF grants, the

budget cuts, the failure to confirm her title, and Senior Staff’s

resistance to Metoyer’s performance of her affirmative action

duties. 

On May 17, 2001, the lawyer from O’Melveny & Myers

reported to McGuire that they were unable to make any findings regarding Metoyer’s claims of racial discrimination and

harassment because Metoyer refused to participate in the

investigation. On May 30, 2001, McGuire terminated

Metoyer’s employment in a letter stating:

The Guild is terminating your employment due to

your unsatisfactory performance as Executive

Administrator of the Guild’s Affirmative Action

Department as set out in greater detail below. . . . 

The Guild has concluded, based on the findings and

results of the investigation and audit by PWC, that

you committed a number of serious acts of misconduct in administering the IACF grants. PWC concluded that (1) “friends, relatives, and business

partners received payment from Loyola Marymount

University;” (2) “Some invoices were manipulated to

disguise the purpose of the payment”; and (3) “Some

invoices were prepared by SAG employees, not the

researchers.” 

II. STANDARD OF REVIEW

We review de novo the district court’s grant of summary

judgment to “determine, viewing the evidence in the light

METOYER v. SCREEN ACTORS GUILD 13157
most favorable to the nonmoving party, whether there are any

genuine disputes of material fact and whether the district

court correctly applied the relevant substantive law.” Morrison v. Hall, 261 F.3d 896, 900 (9th Cir. 2001) (citation omitted). “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

factfinder, upon a full record.” Lam v. University of Hawaii,

40 F.3d 1551, 1564 (9th Cir. 1994) (citation and alteration

omitted). 

III. DISCUSSION

A. Applicable Law 

[1] In analyzing Metoyer’s claims under § 1981, we apply

“the same legal principles as those applicable in a Title VII

disparate treatment case.” Fonseca v. Sysco Food Servs. of

Ariz. Inc., 374 F.3d 840, 850 (9th Cir. 2004) (citation omitted). Typically, we apply the burden-shifting framework

established in McDonnell Douglas.

6

See Fonseca, 374 F.3d at

850. But we have also held that “although the McDonnell

Douglas burden shifting framework is a useful tool to assist

at the summary judgment stage . . . nothing compels the parties to invoke the McDonnell Douglas presumption.” McGin6McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At the first

step of McDonnell Douglas, the plaintiff must establish a prima facie case

of discrimination or retaliation. If the plaintiff makes out her prima facie

case of either discrimination or retaliation, the burden then “shifts to the

defendant to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory [or retaliatory] conduct.” Vasquez v. County of Los

Angeles, 349 F.3d 634, 640 (9th Cir. 2003). Finally, at the third step of

McDonnell Douglas, if the employer articulates a legitimate reason for its

action, “the presumption of discrimination drops out of the picture, and the

plaintiff may defeat summary judgment by satisfying the usual standard of

proof required . . . under Fed. R. Civ. P. 56(c).” Cornwell, 439 F.3d at

1028 (citations and internal quotation marks omitted). 

13158 METOYER v. SCREEN ACTORS GUILD
est v. GTE Service Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)

(citation and internal quotation marks omitted). Instead,

“when responding to a summary judgment motion . . . [the

plaintiff] may proceed by using the McDonnell Douglas

framework, or alternatively, may simply produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated [the employer].” Id.

(citation omitted). “When the plaintiff offers direct evidence

of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not

substantial.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217,

1221 (9th Cir. 1998); see also Wallis v. J.R. Simplot Co., 26

F.3d 885, 889 (9th Cir. 1994) (concluding that on summary

judgment, “[t]he requisite degree of proof necessary to establish a prima facie case . . . is minimal and does not even need

to rise to the level of a preponderance of the evidence”). 

[2] In a Title VII discrimination case, even an employer

who can successfully prove a mixed-motive defense, i.e., he

would have made the same decision regarding a particular

person without taking race or gender into account, does not

escape liability. See 42 U.S.C. § 2000e-5(g)(2)(B); see also

Costa v. Desert Palace, Inc., 299 F.3d 838, 857 (9th Cir.

2002) (en banc), aff’d by, Desert Palace, Inc. v. Costa, 539

U.S. 90 (2003) (explaining that in a Title VII discrimination

case, “the employer will escape the imposition of damages

and any order of reinstatement, hiring, promotion,” but will

still be “liable . . . for attorney’s fees, declaratory relief, and

an order prohibiting future discriminatory actions”). Therefore, the mixed-motive defense, even if proven as an undisputed fact, does not provide a basis for summary judgment in

a Title VII case. See Dominguez-Curry v. Nevada Transp.

Dept., 424 F.3d 1027, 1041-42 (9th Cir. 2005). 

Metoyer, however, brought her claims under § 1981. The

appellee contends that based on the plain language of the

Civil Rights Act of 1991, the amendment eliminating the

mixed-motive defense does not apply to any cause of action

METOYER v. SCREEN ACTORS GUILD 13159
brought under § 1981. Therefore, if the Guild “can prove that,

even if it had not taken [race and] gender into account, it

would have come to the same decision regarding a particular

person[,]” then it has an affirmative defense to a cause of

action for discrimination and retaliation under § 1981. Price

Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989). 

To support this contention, the appellees rely on the Eleventh Circuit case of Mabra v. United Food & Commercial

Workers Local Union No. 1996, 176 F.3d 1357 (11th Cir.

1999). The Eleventh Circuit in Mabra determined that the

mixed-motive defense applied to causes of action under

§ 1981. The court reasoned that in the 1991 Civil Rights Act,

Congress amended Title VII to eliminate the mixed-motive

defense but when Congress amended § 1981 in the same Act,

it did not address the applicability of the mixed-motive

defense. From this congressional silence, the court concluded

that the mixed-motive defense continued to apply to causes of

action brought under § 1981. Id. at 1358. The Eleventh Circuit’s reasoning relies on the faulty premise that the mixedmotive defense applied to causes of action brought under

§ 1981 prior to the Civil Rights Act of 1991. Whatever the

applicability of the mixed-motive defense to liability in Eleventh Circuit case law prior to the Civil Rights Act of 1991, we

have never held that an employer’s mixed-motive acted as a

complete defense to liability from causes of action brought

under § 1981. 

Instead, prior to the Civil Rights Act of 1991, we held that

a defendant in a Title VII suit can avoid damages in the form

of back pay or retroactive award of appointment, promotion

or seniority if she can establish “by ‘clear and convincing evidence’ that even in the absence of discrimination the rejected

applicant would not have been selected for the open position.”

Marotta v. Usery, 629 F.2d 615, 617-18 (9th Cir. 1980); see

also Jauregui v. City of Glendale, 852 F.2d 1128, 1136-37

(9th Cir. 1988) (applying the Marotta standard at the damages

phase when a plaintiff sought to be awarded a position retro13160 METOYER v. SCREEN ACTORS GUILD
actively); Fadhl v. City and County of San Francisco, 741

F.2d 1163, 1166 (9th Cir. 1984) (applying the Marotta standard to the damages phase of a case when a plaintiff sought

back pay and an order of reinstatement); Felton v. Trustees of

California State Universities and Colleges, 708 F.2d 1507,

1509 (9th Cir. 1983) (applying the Marotta standard to a case

in which the plaintiff sought the remedies of retroactive

appointment and back pay) LULAC v. City of Salinas Fire

Dept., 654 F.2d 557, 558 (9th Cir. 1981) (applying the

Marotta standard to the damages phase of a case in which the

plaintiff that sought to be awarded a position retroactively at

the damages phase). Notably, we never held that an employer’s mixed-motive acted as a defense to liability. 

During the period prior to the Civil Rights Act of 1991, we

did not once address the applicability of a mixed-motive

defense to liability or damages to causes of actions brought

under § 1981. This was likely the result of the fact that plaintiffs rarely brought employment discrimination claims solely

under § 1981. Nonetheless, at the time that we were applying

the mixed-motive defense to damages in Title VII cases, we

held in cases that brought both Title VII and § 1981 claims

that “[t]he same standards are used to prove both claims, and

facts sufficient to give rise to one are sufficient to give rise to

the other.” Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th

Cir. 1985) (citation omitted). Therefore, by extension of this

holding, the mixed-motive defense to damages applied to

claims brought under both Title VII and § 1981. 

In Price Waterhouse, the Supreme Court determined in a

Title VII discrimination suit that a mixed-motive defense to

liability was applicable. Under the Price Waterhouse standard, “an employer shall not be liable if it can prove that, even

if it had not taken [the impermissible characteristic] into

account, it would have come to the same decision regarding

a particular person.” Price Waterhouse, 490 U.S. at 242. This

standard obviously conflicted with the standard established in

the Ninth Circuit in which an employer’s mixed-motive only

METOYER v. SCREEN ACTORS GUILD 13161
acted as a defense to damages, not to liability. Importantly

though, the plaintiff in Price Waterhouse did not bring a

§ 1981 claim and the Court never addressed the applicability

of the mixed-motive defense to liability for a claim brought

under § 1981. After the decision in Price Waterhouse, neither

we nor the Supreme Court ever applied the Price Waterhouse

standard to a claim brought under § 1981. In addition, subsequent to Price Waterhouse, we never determined that the legal

principles under Title VII continued to apply to claims

brought under § 1981 in light of the changes to the Title VII

standard. 

Two years after the Supreme Court’s decision in Price

Waterhouse, Congress amended Title VII. This amendment

was in direct response to the Supreme Court’s interpretation

of Title VII as including a mixed-motive defense to liability.

The House Committee on the Judiciary stated in its Report on

the Civil Rights Act of 1991:

The Court’s holding in Price Waterhouse severely

undermines protections against intentional employment discrimination by allowing such discrimination

to escape sanction completely under Title VII. Under

this holding, even if a court finds that a Title VII

defendant has clearly engaged in intentional discrimination, that court is powerless to end that abuse if

the particular plaintiff who brought the case would

have suffered the disputed employment action for

some alternative, legitimate reason. 

H.R. Rept. 102-40(II) at 18 (1991), reprinted in 1991

U.S.C.C.A.N. 549. For these reasons Congress amended Title

VII “to restore the rule applied by the majority of the circuits

prior to the Price Waterhouse decision that any discrimination

that is actually shown to play a role in a contested employment decision may be the subject of liability.” Id. Therefore,

the pre-Price Waterhouse Ninth Circuit standard was restored

13162 METOYER v. SCREEN ACTORS GUILD
in which there was only a mixed-motive defense to damages,

not to liability.7

[3] Since the Supreme Court in Price Waterhouse only

applied the mixed-motive defense to a discrimination claim

brought under Title VII, there was no need for Congress to

amend § 1981 to eliminate a defense never held applicable.

The Supreme Court had never held that the Title VII legal

standard applied to discrimination claims brought under

§ 1981 and that therefore the mixed-motive defense to liability applied to claims brought under both Title VII and § 1981.

Therefore, it is unreasonable, as the Eleventh Circuit has, to

place any weight on the fact that Congress did not amend

§ 1981 in the Civil Rights Act of 1991 to eliminate a mixedmotive defense not known by Congress to exist. 

The appellees can reason that since we held prior to Price

Waterhouse that the same legal standard applied to discrimination claims brought under Title VII and § 1981, the establishment of a mixed-motive defense to liability under Price

Waterhouse was automatically, without additional guidance

from this Court, applicable to claims under § 1981. As a

result, Congress’s failure to amend § 1981 at the same time as

it amended Title VII meant that the mixed-motive defense to

liability continued to apply to causes of action brought under

§ 1981. Therefore, the appellees, following the logic of the

Eleventh Circuit opinion in Mabra, contend that the plain language of § 1981 requires applicability of the mixed-motive

defense to liability. The problem with this analysis is twofold.

7One difference between the pre-Price Waterhouse standard and the

post-Civil Rights Act of 1991 standard was the change in evidentiary

requirements for the mixed-motive defense to damages. Prior to Price

Waterhouse, the Ninth Circuit required that a defendant prove by clear and

convincing evidence that it would have made the same decision. See

Marotta, 629 F.2d at 618. The Civil Rights Act of 1991 requires defendants to prove by a preponderance of the evidence that it would have made

the same decision. See Costa, 539 U.S. at 97. 

METOYER v. SCREEN ACTORS GUILD 13163
[4] First, there is nothing in the plain language of § 1981

establishing a mixed-motive defense to liability. In relevant

part the statute simply states:

All persons within the jurisdiction of the United

States shall have the same right in every State and

Territory to make and enforce contracts, to sue, be

parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens,

and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and

to no other. 

42 U.S.C. § 1981. Any mixed-motive defense would have to

be interpreted by the courts into the statute. Second, assuming

the soundness of the logic that Price Waterhouse, without any

additional guidance from this Court, was automatically

extended to claims under § 1981, and that in order to eliminate the mixed motive defense to liability under § 1981, Congress was required to amend the statute, we must carry it a

step further. 

[5] Subsequent to the amendment of Title VII in the Civil

Rights Act of 1991, we clearly determined, in accordance

with the congressional amendment, that in a Title VII suit an

employer could not avoid liability on the basis of the mixedmotive defense. Costa, 299 F.3d at 850 (9th Cir. 2002) aff’d

539 U.S. 90 (2003). In a later case, we re-confirmed the prePrice Waterhouse determination that an “[a]nalysis of an

employment discrimination claim under § 1981 follows the

same legal principles as those applicable in a Title VII disparate treatment case.” Fonseca, 374 F.3d at 850. As a result, at

the very least our holding in Fonseca incorporated the

amended Title VII into the § 1981 analysis such that the

mixed-motive defense to liability is no longer available under

§ 1981. We therefore hold that the defendant cannot raise a

mixed-motive defense to liability for discrimination claims

13164 METOYER v. SCREEN ACTORS GUILD
brought under § 1981. The mixed-motive defense, even if

proven as an undisputed fact, does not provide a basis for

summary judgment in a § 1981 discrimination case. See

Dominguez-Curry, 424 F.3d at 1041-42. 

[6] According to the same logic, we must find that a mixedmotive defense to liability is available for a retaliation claim

brought under § 1981. In Stegall v. Citadel Broadcasting

Company, we applied the mixed-motive defense to liability in

a Title VII retaliation case. 350 F.3d 1061, 1062, 1068 (9th

Cir. 2004). Since a claim under § 1981 follows the same legal

principles as those applicable in a Title VII case, see Fonseca,

374 F.3d at 850, we hold that the mixed-motive defense to liability for retaliation found applicable in Stegall, also applies

to this retaliation claim brought under § 1981. Therefore, if

the mixed-motive defense to retaliation is proven as an undisputed fact, it can provide a basis for summary judgment. 

B. Section 1981 Claims 

Metoyer’s complaint alleged three § 1981 claims: (1) discrimination in the terms, conditions or privileges of employment based on SAG’s failure to confirm her as National

Director of Affirmative Action; (2) wrongful termination; and

(3) retaliation. We affirm summary judgment on the claim of

discrimination in the terms, conditions or privileges of

employment, but reverse on the grant of summary judgment

on Metoyer’s wrongful termination and retaliation claims. 

1. Discriminatory Breach of Contract 

Metoyer’s first § 1981 claim is that she was discriminated

in the terms, conditions, or privileges of employment. In particular, she contends that SAG made oral representations that

she was being hired for the position of National Director of

Affirmative Action but she was never confirmed for the position and she remained in the lesser position of Executive

METOYER v. SCREEN ACTORS GUILD 13165
Administrator of Affirmative Action throughout her employment. In this position Metoyer received less pay. 

[7] Section 1981 prohibits discrimination in the “benefits,

privileges, terms, and conditions” of employment, see 42

U.S.C. § 1981(b); see also Bains LLC v. Arco Products Co.,

Div. of Atlantic Richfield Co., 405 F.3d 764, 769 n.3 (9th Cir.

2005), and an employee’s title and pay grade qualify as a

privilege, term, or condition of employment. See e.g. Hishon

v. King & Spalding, 467 U.S. 69, 75 (1984). In order to show

discrimination, Metoyer must show that she was contractually

entitled to the position of National Director of Affirmative

Action such that her title and accompanying pay grade constituted one of the terms, conditions, or privileges of her

employment. See id. (holding that the “terms, conditions, or

privileges of employment” clearly included benefits that are

part of an employment contract). Metoyer’s claim fails

because, due to the parol evidence doctrine, there is no admissible evidence establishing the Guild had a contractual obligation to confirm her as the National Director of Affirmative

Action. 

[8] Under California law, “[w]hether [an] agreement is

[integrated] is a question of law for the judge.” Slivinsky v.

Watkins-Johnson Co., 221 Cal. App. 3d 799, 805 (1990) (citation omitted). An express integration clause is not necessary

to a determination that an agreement is integrated. See Heller

v. Pillsbury Madison & Sutro, 50 Cal. App. 4th 1367, 1382

(1996) (citation omitted). Rather, “[t]he central question in

determining whether there has been an integration, and thus

whether the parol evidence doctrine applies, is whether the

parties intended their writing to serve as the exclusive embodiment of their agreement.” Wagner v. Glendale Adventist

Medical Center, 216 Cal. App. 3d 1379, 1385-86 (1989) (citation and internal quotation marks omitted). Even “[w]hen

only part of the agreement is integrated, the parol evidence

rule applies to that part.” Slivinsky, 221 Cal. App. 3d at 805

(citation, internal quotation marks and alterations omitted).

13166 METOYER v. SCREEN ACTORS GUILD
Although the court may consider evidence of surrounding circumstances, prior negotiations, and collateral agreements

when determining integration, “[i]n the case of prior or contemporaneous representations, the collateral agreement must

be one which might naturally be made as a separate contract,

i.e., if in fact agreed upon need not certainly have appeared

in writing.” Wagner, 216 Cal. App. 3d. at 1386 (citation omitted). 

[9] Here, the Guild offered and Metoyer accepted employment as the Guild’s Executive Administrator of Affirmative

Action. Together, the Guild’s offer letter and Metoyer’s

acceptance letter constitute an integrated employment contract. The Guild manifested its intent that the agreement be

the final embodiment of their agreement by including all

material terms: title, salary, benefits, and a starting date. In

addition, the disclaimers contained in Guild’s pre-printed

employment application manifested a general intent on the

part of the Guild that its employment contracts be integrated.

Metoyer acknowledged the Guild’s intent, either before or

shortly after she accepted the Guild’s offer of employment, by

signing an application, stating: 

I understand that nothing contained in this application or conveyed during my interview which may be

granted by the Guild is intended to create an employment contract between me and the Guild. 

* * *

I understand that no representative of the Guild has

any authority to enter into any agreement for

employment for any specified period of time, or to

make commitments or promises or assure any benefits or other terms and conditions of employment

unless such agreements, promises, commitments or

assurances are made in writing and signed by the

Executive Director of Screen Actors Guild. 

METOYER v. SCREEN ACTORS GUILD 13167
(emphasis added). 

Moreover, Metoyer manifested her intent that the Guild’s

offer letter and her acceptance letter be the final embodiment

of their agreement by explicitly accepting on the basis of the

terms contained in the Guild’s letter: “This letter is written to

confirm my acceptance of the position of Executive Administrator, Affirmative, with all the terms and conditions as stated

in your letter dated April 27, 1998.” (emphasis added). 

[10] Notwithstanding the fact that neither the Guild’s offer

letter nor her acceptance letter mentions future confirmation

as the National Director of Affirmative Action, Metoyer

alleges discrimination in the “terms, conditions, or privileges

of employment” under § 1981 because of SAG’s failure to

confirm her as the National Director of Affirmative Action. In

support of this claim, Metoyer offers oral representations

made by Nirschl and Barbadian during her interview process.

Specifically, she offers Nirschl’s statement that the Guild

would be changing the Executive Administrator of Affirmative Action position into a National Director of Affirmative

Action position within a few months. Under the parol evidence doctrine, Nirchl’s prior oral representations, which

would not naturally have been made as a separate contract,

are inadmissible “to vary or contradict the terms of an integrated written instrument.” Wagner, 216 Cal. App. 3d at 1385

(citations omitted). In addition, Metoyer acknowledges the

qualified nature of similar representations by Barbadian: 

Q. What did he say about it? 

A. He said that the department was in disarray and

basically, because of the requirements of the job, the

title should be — should be director, as with my

other position. He basically said that — the same

thing Ms. Nirschl said, but that the executive — this

executive administrator position would be changed,

probably. 

13168 METOYER v. SCREEN ACTORS GUILD
Q. Did he give you any time line where it would

be changed? 

A. No. 

Q. Did he promise you “Absolutely, I promise you

it will be changed”? 

A. No, because he said he might be leaving. 

Even if the title of Metoyer’s position were not part of an integrated employment contract, “[t]here cannot be a valid

express contract and an implied contract, each embracing the

same subject, but requiring different results” because the “express term is controlling even if it is not contained in an integrated employment contract.” Halvorsen v. Aramark Uniform

Services, Inc., 65 Cal. App. 4th 1383, 1388 (1998) (citations

omitted). 

Alternatively, Metoyer can prove discrimination in privileges of employment on the basis of discriminatory denial of

benefits that were not included in her contract. See Hishon,

467 U.S. at 75 (“An employer may provide its employees

with many benefits that it is under no obligation to furnish by

any express or implied contract.”). But this benefit must be

“part and parcel of the employment relationship.” Id. For

example in Hishon, the Supreme Court held that “the opportunity to become a partner [in a law firm] was part and parcel

of an associate’s status as an employee [at the law firm].” Id.

at 76. Metoyer’s claim fails on this account as well. There is

no evidence that confirmation as National Director of Affirmative Action was part and parcel of her position as Executive Administrator of Affirmative Action. In fact, the evidence

points to the contrary. At the time of Metoyer’s hiring, no

position of National Director of Affirmative Action existed

within SAG and as a result, the other Executive Administrator

of Affirmative Action in New York City and prior Executive

Administrators of Affirmative Action had not regularly been

METOYER v. SCREEN ACTORS GUILD 13169
elevated to such a position in a manner comparable to the elevation of associates to partners in law firms. 

[11] Accordingly, we hold the district court did not err in

granting the Guild summary judgment as to Metoyer’s “failure to confirm” claim because there is no triable issue of fact

regarding the terms of Metoyer’s employment contract or the

privileges of her employment. Specifically, there is no admissible evidence supporting Metoyer’s claim the Guild was contractually obligated to confirm her as National Director of

Affirmative Action or that it was a privilege of her employment. 

2. Wrongful Termination 

Metoyer’s second contention is that the district court erred

in granting summary judgment as to her claims of discriminatory termination under § 1981. The district court applied the

McDonnell Douglas burden shifting framework and determined that the plaintiff “failed to present ‘specific’ and ‘substantial’ circumstantial evidence of pretext sufficient to raise

a genuine issue of material fact” with respect to SAG’s decision to terminate her. 

Metoyer contends that the district court erred in granting

summary judgment because she presented both direct and circumstantial evidence demonstrating that SAG management

harbored discriminatory animus toward African-Americans.

We agree. 

[12] Metoyer presented direct evidence of discrimination in

the form of several remarks by members of senior management suggesting the existence of racial bias. We have held

that bigoted remarks by a member of senior management may

tend to show discrimination, even if directed at someone other

than the plaintiff. Cordova v. State Farm Ins. Cos., 124 F.3d

1145, 1149 (9th Cir. 1997). Furthermore, we have held that

remarks by such a decisionmaker tend to show bias, even if

13170 METOYER v. SCREEN ACTORS GUILD
several years old. See Mustafa v. Clark County School Dist.,

157 F.3d 1169, 1179-80 (9th Cir. 1998). 

Beginning in August of 1999, when Metoyer petitioned the

Guild’s Senior Staff to create a National Director of Affirmative Action position, Linda Schick, explained, “[t]here are no

people of color on senior staff, and it’s very unlikely that

there will be.” As part of her job, Metoyer related complaints

of racial discrimination by minority employees within the

Guild. Shick responded to Metoyer’s relayed complaints that

African-Americans were being kept in low-paying jobs by

stating, “I’m keeping them there because I want to keep an

eye on them because black people like to party and eat and

don’t do their work.” Chassman responded, “[t]hey ought to

be glad they have a job.” In another meeting, Chassman made

a discriminatory remark to Metoyer in response to more complaints of discrimination by minority employers: “All of these

people are lazy and malingerers. Is that something special

with African-Americans that they have to socialize all the

time and they are never happy? They should be happy to have

this job.” Schick warned Metoyer that SAG senior management did not tolerate people of color talking back the way she

did, commenting that “you talk more than other black people

here. The rest of them are like — they’re like a tribe or something. They hang around together, and they don’t talk. You’re

unusual. You talk too much.” 

[13] Metoyer has also presented circumstantial evidence of

discriminatory animus held by SAG senior management

towards African-Americans. The numerous complaints of discrimination by minority employees of SAG, in particular the

complaints to Metoyer that the Guild’s senior staff, including

Schick, Chassman and McGuire were discriminating on the

basis of race in making promotions and assigning work and

pay is circumstantial evidence demonstrating discriminatory

animus. 

METOYER v. SCREEN ACTORS GUILD 13171
The Guild contends that McGuire was the sole decisionmaker in terminating Metoyer. Therefore, the discriminatory

statements by Shick and Chassman are irrelevant because they

had no role in the termination decision. The Guild argues that

since there is no direct evidence of discriminatory animus by

McGuire, summary judgment was appropriate. The Guild is

correct in its contention that there is no evidence linking

Schick to the termination decision, but there is evidence that

raises a genuine issue of material fact as to the role of Chassman in the firing decision. Chassman was Metoyer’s direct

supervisor at SAG and was, therefore, responsible for decisions regarding her employment. In particular, he had the

authority to terminate her employment. McGuire consulted

with Chassman on the decision to suspend Metoyer. The letter

informing Metoyer of that decision was signed and delivered

by Chassman. Just prior to being placed on administrative

leave, Metoyer was summoned to McGuire’s office regarding

“a personnel matter”; when she arrived Chassman was present.8

Even if Chassman is not considered the ultimate decisionmaker, “[w]here . . . the person who exhibited discriminatory

animus influenced or participated in the decisionmaking process, a reasonable factfinder could conclude that the animus

affected the employment decision.” Dominguez-Curry, 424

F.3d at 1039-40 (citation omitted). Metoyer has presented

ample evidence from which a trier of fact could conclude that

Chassman influenced or participated in the decisionmaking

process. Combining the evidence raising a triable issue of fact

regarding Chassman’s role or influence in the decisionmaking

process with the evidence of his discriminatory remarks,

Metoyer has presented direct evidence sufficient to survive

summary judgment of discriminatory animus by a decisionmaker. 

8There is also evidence in the form of a letter from SAG’s president to

Chassman and McGuire regarding disciplinary actions against “members”

of the department that Chassman and McGuire were generally working

together with respect to all dismissals in the Affirmative Action department. 

13172 METOYER v. SCREEN ACTORS GUILD
There is evidence that the Guild was not motivated by discrimination in terminating Metoyer. In particular, the Guild

contends that Metoyer was terminated because of the PwC

audit, which showed that Metoyer had misappropriated more

than $30,000 in IACF grant funds. However, there is also evidence in the record to the contrary. Specifically, McGuire,

who had previously demonstrated racial animus toward

Metoyer, testified in his deposition that the PwC audit “was

to be of the three [Metoyer] grants that we’ve been talking

about.” When asked why the audit was limited to just these

grants, McGuire responded, “The reason was because of the

concerns raised specifically that that’s where the audit should

be concentrated.” This conflicting evidence raises a material

issue of fact precluding summary judgment. 

[14] In light of the substantial direct and circumstantial evidence of discriminatory animus by SAG management, which

made the decision to audit Metoyer, we conclude that

Metoyer has raised a genuine issue of fact as to whether SAG

was more likely than not motivated by discrimination in its

decision to terminate her. See id. at 1042 (“[T]he plaintiff in

any Title VII case may establish a violation through a preponderance of the evidence . . . that a protected characteristic

played ‘a motivating factor. To overcome summary judgment,

a plaintiff merely must raise a triable issue as to this question.” (citation omitted)). Therefore, we conclude that the district court erred in its grant of summary judgment on the

§ 1981 claim of discriminatory termination. 

3. Retaliation 

[15] Metoyer presented both direct and circumstantial evidence of retaliation for bringing discrimination complaints to

the attention of SAG management and for highlighting the

fraudulent Equal Employment Opportunity (EEO-1) report

submitted to the Equal Employment Opportunity Commission

(EEOC). In spite of her position as Executive Administrator

of Affirmative Action, Metoyer was told that it was not her

METOYER v. SCREEN ACTORS GUILD 13173
business to raise complaints of racial discrimination and that

she was not to take her concerns to anyone other than Schick

and Chassman. When appellant failed to heed the warnings

that her opposition to discrimination was unwelcome, senior

staff responded to the relayed complaints with discriminatory

comments about African-Americans by both Schick and

Chassman. See supra III.B.2. Chassman accused Metoyer of

encouraging SAG employees to come forward with complaints of racial discrimination and became angry that

Metoyer was sowing discontent by raising allegations of discrimination. Finally, when the appellant raised the fraudulent

EEO-1 report to SAG Senior management and announced her

intention to discuss the discrepancies and present the discrimination complaints by employees to SAG’s national plenary

session in April 2001, Schick responded vindictively, “That

bitch, I’m going to get that bitch.” Shortly before the plenary

session, Metoyer was suspended by SAG senior management

ostensibly because of the findings from the PwC audit. As a

result of the suspension, Metoyer was not allowed to address

the plenary session. 

The direct evidence of retaliatory intent by Chassman, a

participant in the suspension and termination decision, for

Metoyer’s engagement in protected activity, and the timing of

the suspension, which ultimately resulted in Metoyer’s termination, raises a triable issue of fact as to the § 1981 retaliation

claim. 

The Guild asserts a “mixed-motive” defense under which

an employer can avoid liability for retaliation by showing that

it would have made the same decision absent any impermissible motivation. See Stegall, 350 F.3d at 1068; Price Waterhouse, 490 U.S. at 242. “As to the employer’s proof, in most

cases, the employer should be able to present some objective

evidence as to its probable decision in the absence of an

impermissible motive.” Id. at 252. “The mixed-motive inquiry

is an intensely factual one.” Gilbrook v. City of Westminster,

177 F.3d 839, 855 (9th Cir. 1999). Further, since the defen13174 METOYER v. SCREEN ACTORS GUILD
dant bears the burden of proof on the mixed-motive defense,

“the defendant[ ] must vault a very high hurdle” to obtain

judgment as a matter of law. Settlegoode v. Portland Public

Schools, 371 F.3d 503, 512 (9th Cir. 2004). Accordingly,

mixed-motive defenses are generally for the jury to decide. 

[16] We hold that SAG has not presented sufficient evidence to support summary judgment based on the mixedmotive defense. The Guild contends that its mixed-motive

defense is supported by an investigation conducted by a thirdparty accounting firm that concluded Metoyer made questionable payments to Bae and Nguyen, two current Guild employees; Bolding, a recent Guild employee; and Metoyer’s

husband’s production company. While the facts of the misconduct are undisputed, SAG’s contention that it would have

made the same decision is undermined by Metoyer’s declaration that other persons engaged in questionable practices

related to IACF funds and faced no disciplinary consequences. 

[17] In addition to the McGuire testimony, there was also

evidence in the record that the PwC audit was not a completely unbiased investigation. Ron Thompson, C.P.A., evaluated the methodology utilized by PwC, and concluded that

there were questions concerning whether the investigation

truly encompassed all outstanding grants. Thompson based

his conclusion on a statement in the PwC report that PwC was

retained “to evaluate certain grant activities based upon allegations of potential misconduct by one of the grant administrators[,]” specifically those grants administered by Dr.

Metoyer. Thompson also suggested that the other grants were

only mentioned in the report to prevent the appearance that

Dr. Metoyer’s grants were the target of the investigation.

Thompson’s opinion was supported by a statement from Daniel Smith-Christopher, a professor at Loyola Marymount University, that during his interview with PwC, the focus was on

Dr. Metoyer. This evidence raised a material question of fact

regarding whether discriminatory animus prompted and influMETOYER v. SCREEN ACTORS GUILD 13175
enced the PwC investigation, rendering summary judgment

inappropriate. We therefore reverse summary judgment on the

§ 1981 retaliation claim. 

4. State Law Discrimination and Retaliation Claims 

Metoyer has also presented claims of discrimination and

retaliation under the California Fair Employment and Housing

Act. The appellees contend that she consented to the dismissal

of these state law claims. We hold that Metoyer has not consented to the dismissal of her state law claims and that judgment on the pleadings is reversed on both claims. 

This case was first filed in California state court. Metoyer

originally pleaded only state-law discrimination claims. After

the state trial judge granted the Defendant’s motion for summary judgment on the basis that, under the Supremacy Clause

of the United States Constitution, U.S. Const. Art. VI, cl. 2,9

the Labor-Management Reporting and Disclosure Act of 1959

(“LMRDA”) preempted Metoyer’s FEHA claims, Metoyer

added her § 1981 claims and the defendants removed the case

to federal court. Defendants moved for summary judgment,

contending once again that the LMRDA preempts FEHA,

thereby barring Metoyer’s FEHA based claims. During argument on this motion, the court explained its view that the case

would be won or lost on the § 1981 claims and asked

Metoyer’s counsel, “[W]hy not just dismiss the [FEHA]

claim?” 

9Article VI, clause 2, of the United States Constitution states: 

This Constitution, and the Laws of the United States which shall

be made in Pursuance thereof; and all Treaties made, or which

shall be made, under the Authority of the United States, shall be

the supreme Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding. 

U.S. Const. Art. VI, cl. 2. 

13176 METOYER v. SCREEN ACTORS GUILD
At the court’s request, the parties then filed supplemental

briefs on preemption and on whether the state trial judge’s

ruling was binding. In her supplemental brief, Metoyer argued

against preemption. She stated, however, that:

In response to the court’s question during oral argument as to why Plaintiff still needs the state law

claims along with the federal claims, Dr. Heisser

Metoyer is prepared to dismiss her state FEHA

claims and proceed to trial on the 42 U.S.C. section

1981 causes of action. 

(Emphasis added.)10 Based on this statement, the district court

held that Metoyer consented to dismissal of her FEHA claims.

We have previously upheld an “unqualified oral stipulation

of dismissal made in open court” as effective to consent to

judgment on claims. See Eitel v. McCool, 782 F.2d 1470,

1473 (9th Cir. 1986). However, for the dismissal to be effective, it must unqualified and unambiguous. Here, Metoyer’s

statement in her brief is too ambiguous to constitute such consent. The statement “is prepared to dismiss” may mean something other than she is dismissing. It may reasonably mean

she is awaiting some consideration for such dismissal; it may

equally mean a preliminary, not final, decision. 

Although Metoyer’s FEHA and § 1981 claims are largely

parallel, the Guild asserted that 29 U.S.C. § 504 (“§ 504”)

barred Metoyer’s § 1981 claims, an assertion that does not

necessarily bar Metoyer’s FEHA claims. Therefore, one reasonable interpretation of Metoyer’s statement was that she

was prepared to dismiss the FEHA claims, if the court determined that § 504 did not bar her federal claims from proceeding to trial. Further, Metoyer requested that the court deny

judgment in its entirety and argued extensively against pre10As part of this same motion, Metoyer requested the court to deny the

Guild’s motion for summary judgment in its entirety. 

METOYER v. SCREEN ACTORS GUILD 13177
emption of her FEHA claims in the same brief. Thus, the district court erred in interpreting Metoyer’s statement as

stipulating to dismissal of her FEHA claims. 

[18] California courts apply the Title VII framework to

claims brought under FEHA. See Guz v. Bechtel Nat. Inc., 24

Cal. 4th 317, 354 (2000) (“Because of the similarity between

state and federal employment discrimination laws, California

courts look to pertinent federal precedent when applying our

own statutes.”). We therefore reverse the district court’s grant

of summary judgment on the state law discrimination and

retaliation claims for the same reasons we reverse on the federal law discrimination and retaliation claims. 

IV. CONCLUSION

For the foregoing reasons, we AFFIRM summary judgment on Metoyer’s § 1981 claim of discriminatory failure to

confirm as National Director of Affirmative Action. We

REVERSE summary judgment on the federal and state discrimination and retaliation claims because Metoyer has raised

a triable issue of fact as to all of these claims. 

AFFIRMED IN PART; REVERSED IN PART. Each

party is to bear its costs on appeal. 

BEA, Circuit Judge, concurring in part and dissenting in part:

Metoyer sued the Screen Actors Guild (“the Guild”)1 for

race discrimination and retaliation after the Guild fired her.2

1Also named as Defendants were John McGuire, the Guild’s Acting

Executive National Director, and Leonard Chassman, the Guild’s Hollywood Executive Director. For the sake of clarity, I will refer to all Defendants collectively as “the Guild.” 

2Metoyer did not bring a Title VII action for discrimination in employment. She did not file a claim with the Equal Employment Opportunity

Commission (“EEOC”). She sued only under 42 U.S.C. § 1981, which

provides a more generous avenue of relief than Title VII. See infra note

11. 

13178 METOYER v. SCREEN ACTORS GUILD
She was fired. But only after she admitted to the Guild she

had doled out over $30,000 of Guild funds to her business

partners, friends, and family through a pretty simple, but

effective, scheme. She admitted she fabricated bogus invoices

and concocted inexistent events. She authorized Guild payments for these phoney items to the nice-sounding Loyola

Marymount University (“LMU”). There, a compliant LMU

employee would hold the Guild money till Metoyer gave

instructions for disbursement to her business partners, friends,

and family. 

LMU was a cut-out. The paper trail at the Guild would

show that only LMU had received the funds in payment for

invoices or for events. LMU’s records would show who the

real recipients were, but those records were not on the Guild’s

premises. 

In a misguided opinion, the majority rejects the Guild’s

defense that notwithstanding the validity of Metoyer’s racial

discrimination claims, the Guild had a perfect right to fire her,

and would have done so, because of Metoyer’s theft of its

funds. That is, the majority rejects the “mixed-motive

defense” in a § 1981 discrimination action. 

In reversing summary judgment for the Guild, the majority

got the law and the facts wrong. 

The Law. The Civil Rights Act of 1991 (“1991 CRA”)3

amended Title VII to make the mixed-motive defense only a

defense to damages, but not to liability, in discrimination

actions brought under “section 2000e-2(m) of this title.” 42

U.S.C. § 2000e-5(g)(2)(B). The majority holds § 2000e5(g)(2)(B) somehow applies to actions brought under § 1981.

This, in spite of the fact that § 1981 was also amended as to

other particulars with the 1991 CRA, but no limitation to the

mixed-motive defense was enacted in § 1981. 

3Pub. L. No. 102-166, 105 Stat. 1071 (effective Nov. 21, 1991). 

METOYER v. SCREEN ACTORS GUILD 13179
In effect, the majority opinion amends § 2000e-5(g)(2)(B)

to make its limitations on the mixed-motive defense applicable to actions brought “under section 2000e-2(m) or section

1981 of this title.” This violates the fundamental provision of

the United States Constitution that vests legislative power in

the Congress of the United States.4

The majority opinion’s amendment of § 2000e-5(g)(2)(B)

also creates an inter-circuit split with the Eleventh Circuit.

Mabra v. United Food & Commercial Workers Local Union

No. 1996, 176 F.3d 1357, 1357-58 (11th Cir. 1999). Such

amendatory reading of § 2000e-5(g)(2)(B) also departs from

the wise reasoning of other sister circuits that have held

§ 2000e-5(g)(2)(B), by its plain language, is inapplicable to

actions brought under the Age Discrimination in Employment

Act, the False Claims Act, and 42 U.S.C. § 1983.5

The Facts. One cannot get away from the fact that Metoyer

gave the Guild the motive for her firing by admitting fabrication of invoices, payment of Guild funds in direct violation of

undisputed Guild policies, and total lack of documentation for

any services rendered in supposed exchange for the Guild

funds defalcated by her. There simply is no triable issue that

she pilfered the Guild’s funds. Henceforth, at least in the

Ninth Circuit, employers will be forced to go to trial for terminating a thieving employee, so long as the employee makes

a colorable claim that a potentially discriminatory motive

played a role in the employer’s action. 

4U.S. Const., art. I., sec.1. 

5

Inexplicably, the majority opinion does not apply the limitations on the

mixed-motive defense to retaliation actions brought under § 2000e-3 of

Title VII, upon the common sense ground that the limitations apply only

to “actions brought under section 2000e-2(m) of this title.” § 2000e5(g)(2)(B). It is difficult to fathom why the limitation does not apply to

a statute just a subsection away because it is not named in the limitation,

but does apply to a statute in another section of the United States Code,

similarly not named. See infra Part I.C. 

13180 METOYER v. SCREEN ACTORS GUILD
Unlike the majority, I think that an amendment to one statute cannot sub silentio rewrite another. Unlike the majority,

I think there is no triable issue that the Guild would have fired

Metoyer for theft and fraud even in the absence of a discriminatory motive. I concur in Part III.B.1 of the majority opinion

affirming the district court’s grant of summary judgment for

the Guild on Metoyer’s discriminatory breach of contract

claim. From the rest of the majority opinion reversing the district court’s grant of summary judgment, I respectfully dissent. 

I.

The crux of this case then, is: (1) whether the mixed-motive

defense remains a complete defense to § 1981 actions after

the enactment of the 1991 CRA; and (2) if so, whether a triable issue of fact exists as to the Guild’s decision to terminate

Metoyer for wrongfully giving over $30,000 of Guild funds

to friends, family, and business partners, and falsifying

invoices to cover up her tracks. 

A.

The Supreme Court first recognized the mixed-motive

defense to Title VII discrimination actions in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Hopkins sued Price

Waterhouse under Title VII, claiming Price Waterhouse discriminated against her on the basis of gender in not proposing

her for partnership after her candidacy was put on hold. Id. at

231-32. The district court found that Price Waterhouse’s decision was based partly on impermissible gender stereotyping

and partly on the legitimate reason that Hopkins had an abrasive interpersonal style. Id. at 236-37. The Supreme Court

held an employer’s mixed motive in making an employment

decision can be a complete defense to liability: “[O]nce a

plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may

avoid a finding of liability only by proving that it would have

METOYER v. SCREEN ACTORS GUILD 13181
made the same decision even if it had not allowed gender to

play such a role.” Id. at 244-45 (footnote omitted). This

defense became known as the “mixed-motive defense.” Under

Price Waterhouse, the mixed-motive defense was a complete

bar to Title VII liability if the defendant proved, by a preponderance of the evidence, that it would have made the same

employment decision absent the discriminatory motive. Id. at

252-53. 

At the time of the Price Waterhouse decision, every circuit

to address the question, including the Ninth, had applied the

same standards for liability to Title VII and § 1981. “Title VII

and section 1981 are overlapping but independent remedies

for racial discrimination in employment. . . . The same standards are used to prove both claims . . . and facts sufficient

to give rise to one are sufficient to give rise to the other.”

Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985)

(citations omitted).6 Thus, with the Supreme Court’s decision

in Price Waterhouse, the mixed-motive defense also became

an affirmative defense to actions brought under § 1981. See

Odima v. Westin Tucson Hotel Co., 991 F.2d 595, 601-02 (9th

Cir. 1993) (reversing both Title VII and § 1981 judgments for

the plaintiff based on the district court’s failure, inter alia, to

consider the mixed-motive defense); Bains LLC v. Arco Products Co., 405 F.3d 764, 772 (9th Cir. 2005) (rejecting the

defendant’s mixed-motive defense to a § 1981 claim for lack

of evidence).7 Indeed, even the majority concedes that

6

See also Lopez v. S.B. Thomas, Inc., 831 F.2d 1184 (2nd Cir. 1987)

(applying the McDonnell Douglas framework from Title VII case law to

analyze a § 1981 action); Lewis v. Univ. of Pittsburgh, 725 F.2d 910, 915

n.5 (3rd Cir. 1983) (holding § 1981 and Title VII actions require the same

elements of proof and collecting authority from the Second, Fourth, Fifth,

and Eighth Circuits). 

7

See also Pulliam v. Tallapoosa County Jail, 185 F.3d 1182, 1184 (11th

Cir. 1999) (holding the mixed-motive defense is an affirmative defense to

liability in § 1981 actions); Thomas v. Denny’s, Inc., 111 F.3d 1506, 1511-

12 (10th Cir. 1997) (holding it was error for the district court to reject a

13182 METOYER v. SCREEN ACTORS GUILD
because the same standards are used to prove both Title VII

and § 1981 claims, the mixed-motive defense became a

defense to § 1981 actions before the 1991 CRA’s enactment.8

mixed-motive instruction in a § 1981 case); Hargett v. Nat’l Westminster

Bank, USA, 78 F.3d 836, 840-41 (2nd Cir. 1996) (holding a Price Waterhouse mixed-motive instruction is proper in a § 1981 action if “there is

evidence to show that an employment determination was the product of a

mixture of legitimate and illegitimate motives” (quotation marks and citations omitted)); Williams v. Fermenta Animal Health Co., 984 F.2d 261,

264-65 (8th Cir. 1993) (holding the district court gave a proper mixedmotive instruction for plaintiff’s claims under § 1981 and Title VII); New

Burnham Prairie Homes, Inc. v. Vill. of Burnham, 910 F.2d 1474, 1483

(7th Cir. 1990) (holding a mixed-motive instruction is proper in a claim

brought under §§ 1981 and 1982). 

8The majority asserts, however, that at the time of the 1991 CRA’s

enactment, the mixed-motive defense to § 1981 was a defense only to

damages, but not to liability. To support this assertion, the majority relies

on a number of Ninth Circuit opinions that predate the Supreme Court’s

decision in Price Waterhouse and that apply the mixed-motive defense

only to damages, but not to liability, in Title VII actions. 

Nevertheless, Price Waterhouse, which was decided before the 1991

CRA’s enactment, changed the legal landscape for the mixed-motive

defense. After Price Waterhouse, the mixed-motive defense became a

complete bar to liability, not merely a defense to damages. Price Waterhouse, 490 U.S. at 244-45 (“[O]nce a plaintiff in a Title VII case shows

that gender played a motivating part in an employment decision, the

defendant may avoid a finding of liability . . . by proving that it would

have made the same decision even if it had not allowed gender to play

such a role.” (emphasis added) (footnote omitted)). 

The fact that Price Waterhouse was a Title VII decision is of no material consequence. At the time of the Price Waterhouse decision, we were

defining the liability standards under § 1981 by reference to Title VII case

law. See Lowe, 775 F.2d at 1010. As a corollary, and as the majority concedes, Title VII case law on the mixed-motive defense also controlled the

mixed-motive defense under § 1981. Thus, when Title VII case law on the

mixed-motive defense was altered by Price Waterhouse, so was the

mixed-motive defense under § 1981. Consequently, the mixed-motive

defense became a complete bar to liability in § 1981 actions as well. See

supra note 7 and accompanying text (citing authorities from the Ninth Circuit as well as from the Second, Seventh, Eighth, Tenth, and Eleventh Circuits). 

METOYER v. SCREEN ACTORS GUILD 13183
The question then is what effect, if any, the 1991 CRA had

on the applicability of the mixed-motive defense as a complete bar to liability under § 1981.

B.

I begin my interpretation, as I must, with the text of the

1991 CRA. And “where, as here, the words of the statute are

unambiguous, the judicial inquiry is complete.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003) (citations and quotation marks omitted). At issue in this case are two new

provisions the 1991 CRA added to Title VII, but not to

§ 1981. The first provision establishes the “mixed-motive”

ground for Title VII liability. Id. at 94. It states:

Except as otherwise provided in this subchapter, an

unlawful employment practice is established when

the complaining party demonstrates that race, color,

religion, sex, or national origin was a motivating factor for any employment practice, even though other

factors also motivated the practice. 

42 U.S.C. § 2000e-2(m). The second provision allows a

defendant to limit the plaintiff’s remedies, but not completely

avoid liability, in an action brought under § 2000e-2(m) if the

defendant can prove a mixed-motive defense:

On a claim in which an individual proves a violation

under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have

taken the same action in the absence of the impermissible motivating factor, the court— 

(i) may grant declaratory relief, injunctive relief

(except as provided in clause (ii)), and attorney’s

fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section

2000e-2(m) of this title; and 

13184 METOYER v. SCREEN ACTORS GUILD
(ii) shall not award damages or issue an order

requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).

42 U.S.C. § 2000e-5(g)(2)(B) (emphasis added). Thus,

§ 2000e-5(g)(2)(B) modified Price Waterhouse insofar as the

Price Waterhouse Court recognized the mixed-motive defense

as a complete bar to liability. See Estate of Reynolds v. Martin, 985 F.2d 470, 475 n.2 (9th Cir. 1993). Under the new

§ 2000e-5(g)(2)(B), the mixed-motive defense is a defense

only to damages for an action under § 2000e-2(m), but not to

liability for prospective equitable relief and attorneys’ fees. 

Metoyer’s case requires us to decide what effect § 2000e5(g)(2)(B) has on an action brought under § 1981. The

answer: Absolutely none. Congress could not have been more

explicit. Section 2000e-5(g)(2)(B) applies only “[o]n a claim

in which an individual proves a violation under section

2000e-2(m) of this title.” Section 2000e-5(g)(2)(B) does not

state that it applies “[o]n a claim in which an individual

proves a violation under section 2000e-2(m) or section 1981

of this title.” Yet the majority, after a convoluted legal analysis, amends § 2000e-5(g)(2)(B) to say just that. 

The majority’s judicial amendment is even more difficult to

understand under any known precept of statutory interpretation because Congress also amended § 1981 in the 1991 CRA.

See Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.

1071, 1071-72 (1991).9 Absent from the 1991 CRA’s amend9Section 101 of the 1991 CRA states: 

Section 1977 of the Revised Statutes (42 U.S.C. 1981) is

amended— 

(1) by inserting “(a)” before “All persons within”; and 

(2) by adding at the end the following new subsections: 

“(b) For purposes of this section, the term ‘make and enforce

contracts’ includes the making, performance, modification, and

METOYER v. SCREEN ACTORS GUILD 13185
ments to § 1981, however, is any limitation on the applicability of the mixed-motive defense to § 1981. It is wellestablished that if “Congress includes particular language in

one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983)

(quotation marks and citations omitted). Where Congress

intended to limit the mixed-motive defense, it did so expressly

and only as to certain claims (damages) but not others (prospective equitable relief and attorneys’ fees). See § 2000e5(g)(2)(B). This is compelling evidence that Congress’s omission of such a limitation in § 1981, which Congress also

amended in the very same Act, was intentional and not accidental. 

It is also a “cardinal principle of statutory construction”

that we must “give effect, if possible, to every clause and

word of a statute.” Duncan v. Walker, 533 U.S. 167, 174

(2001) (quotation marks and citations omitted). We must be

“reluctan[t] to treat statutory terms as surplusage.” Id. (quotation marks and citations omitted). In remarkable disregard of

this fundamental principle, the majority’s application of

§ 2000e-5(g)(2)(B) to § 1981 renders the following words in

§ 2000e-5(g)(2)(B) entirely superfluous: “On a claim in which

an individual proves a violation under section 2000e-2(m) of

this title . . .”

10 If this provision also applies to § 1981, it is

termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 

“(c) The rights protected by this section are protected against

impairment by nongovernmental discrimination and impairment

under color of State law.” 

Id. at 1071-72. 

10The majority’s interpretation of § 2000e-5(g)(2)(B) also renders

another part of that provision superfluous. Section 2000e-5(g)(2)(B)(i)

states that when the defendant successfully asserts a mixed-motive

13186 METOYER v. SCREEN ACTORS GUILD
superfluous because its language limits the provision to

claims for the violation of § 2000e-2(m). The only interpretation that would not render any part of § 2000e-5(g)(2)(B)

superfluous is the one that makes that provision applicable

only to actions brought under § 2000e-2(m). 

Under its clear statutory language, § 2000e-5(g)(2)(B) has

no applicability to § 1981 actions. See Kaiser Aluminum &

Chem. Corp. v. Bonjorno, 494 U.S. 827, 835 (1990) (“Absent

a clearly expressed legislative intention to the contrary, [the

statutory] language must ordinarily be regarded as conclusive.”); cf. Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454,

460-61 (1975) (holding Title VII’s administrative complaint

requirements apply only to Title VII actions and do not apply

to § 1981 claims). Rarely does Congress declare its intent

with such specificity. Instead of embracing that intent, the

majority rejects it, without stating what in the world § 2000e5(g)(2)(B) would mean if it does not limit the mixed-motive

defense only as to § 2000e-2(m) claims.11

defense, the court may not award damages, but may award, inter alia, “attorney’s fees and costs demonstrated to be directly attributable only to the

pursuit of a claim under section 2000e-2(m) of this title.” Id. (emphasis

added). While the majority does not expressly address whether attorney’s

fees will be available to a plaintiff in a § 1981 action when the defendant

proves the mixed-motive defense, this conclusion is implicit in its holding

that § 2000e-5(g)(2)(B) is “incorporated” into § 1981. As a result, the

majority also renders superfluous the portion of § 2000e-5(g)(2)(B)(i) that

allows the recovery of attorney’s fees attributable “only to the pursuit of

a claim under section 2000e-2(m) of this title.” 

11I am loath to speculate as to Congress’s reasons for limiting the

mixed-motive defense in Title VII discrimination actions, but not in

§ 1981 actions. Nevertheless, for those who look beyond the statutory text

for congressional intent, I note that § 1981 provides a much more attractive avenue of relief to plaintiffs than does Title VII. First, Title VII

applies only to employers with fifteen or more employees, whereas § 1981

has no such threshold requirement. 42 U.S.C. § 2000e(b). Second, Title

VII requires the plaintiff to exhaust administrative remedies, such as filing

a claim with the EEOC (a step that Metoyer did not take), before seeking

METOYER v. SCREEN ACTORS GUILD 13187
The majority reasons that because our decision in Fonseca

held “the same legal principles” apply to § 1981 and Title VII

actions, Fonseca’s holding “incorporated the amended Title

VII into the § 1981 analysis such that the mixed motive

defense to liability is no longer available under § 1981.” The

majority’s reliance on Fonseca is entirely misplaced. Fonseca

had nothing to do with the mixed-motive defense or with the

1991 CRA’s amendments to Title VII.12 In Fonseca, we

merely reaffirmed what we had been holding for two decades:

the McDonnell Douglas burden-shifting framework from Title

VII case law can also be used to analyze § 1981 actions. Fonseca v. Sysco Food Servs. of Ariz., 374 F.3d 840, 847-50 (9th

Cir. 2004) (citing Lowe v. City of Monrovia, 775 F.2d 998

(9th Cir. 1985)). The majority takes out of context Fonseca’s

holding as to the McDonnell Douglas framework and extends

it to a provision, § 2000e-5(g)(2)(B), which the Fonseca court

did not even cite. The majority’s quite original, but quite erroneous, interpretation of § 2000e-5(g)(2)(B) is bad enough. But

the majority compounds this error by stretching the language

quoted from Fonseca outside the context in which the words

were used. 

C.

In addition to circumventing the plain language of § 2000e5(g)(2)(B), the majority’s holding conflicts with the decisions

a private action for damages, whereas § 1981 has no such requirement. 42

U.S.C. § 2000e-5(f). Third, there are limits on compensatory and punitive

damages recoverable under Title VII, whereas no such limits exist for

damages under § 1981. 42 U.S.C. § 1981a(b)(3). Finally, Title VII covers

only employment discrimination, but § 1981 is not so limited. Because

§ 1981 provides a more generous avenue for relief, Congress may have

wanted to retain the mixed-motive defense as a complete bar to liability

under § 1981, while limiting its applicability only to the more limited

damages recoverable under Title VII. 

12Indeed, the word “motive,” let alone “mixed motive,” does not even

appear in the Fonseca opinion. 

13188 METOYER v. SCREEN ACTORS GUILD
of many of our sister circuits. First, the majority creates a

direct circuit split with the Eleventh Circuit, which correctly

interpreted § 2000e-5(g)(2)(B) to be inapplicable to § 1981.

Mabra v. United Food & Commercial Workers Local Union

No. 1996, 176 F.3d 1357, 1357-58 (11th Cir. 1999). The

Mabra court reasoned that the plain language of § 2000e5(g)(2)(B) makes no reference to § 1981. Id. The court found

this omission to be particularly telling where the 1991 CRA

also amended § 1981 to add two new subsections, none of

which limit the applicability of the mixed-motive defense to

§ 1981 actions. Id.13

Second, at least seven of our sister circuits have concluded

that § 2000e-5(g)(2)(B), which by its express language

applies only to Title VII discrimination claims under § 2000e2(m), is inapplicable even to Title VII retaliation claims

under § 2000e-3. See Matima v. Celli, 228 F.3d 68, 81 (2nd

Cir. 2000) (so holding and collecting cases from the First,

Third, Fourth, Seventh, Eighth, and Eleventh Circuits). These

courts hold § 2000e-5(g)(2)(B)’s plain language compels this

conclusion even though, like in § 1981 actions, courts have

“generally borrowed from [Title VII] discrimination law in

determining the burdens and order of proof in [Title VII]

retaliation cases.” Woodson v. Scott Paper Co., 109 F.3d 913,

934 (3rd Cir. 1997). Indeed, even the majority opinion holds

§ 2000e-5(g)(2)(B) is inapplicable to Title VII retaliation

actions, and by extension, to § 1981 retaliation actions. 

In so holding, the majority relies on our decision in Stegall

v. Citadel Broadcasting Co., 350 F.3d 1061 (9th Cir. 2004).

In Stegall, which was decided after the 1991 CRA’s enact13The majority rejects Marba as relying on “the faulty premise” that the

mixed-motive defense was a complete defense to liability under § 1981

before the 1991 CRA’s enactment. For the reasons outlined supra note 8,

the majority is incorrect. With the Supreme Court’s decision in Price

Waterhouse and before the 1991 CRA’s enactment, the mixed-motive

defense became a complete defense to liability under § 1981 actions as

well. 

METOYER v. SCREEN ACTORS GUILD 13189
ment, we assumed the mixed-motive defense continues to be

a complete bar to liability in a Title VII retaliation action

under § 2000e-3. Id. at 1068. The Stegall court did not explain

why the 1991 CRA did not alter the mixed-motive analysis in

a Title VII retaliation action, perhaps because that explanation

is very straightforward. As discussed above, § 2000e5(g)(2)(B), which limits the applicability of the mixed-motive

defense, only applies to a Title VII discrimination claim under

§ 2000e-2(m). By its plain language, it is inapplicable to any

other provision, including a Title VII retaliation claim under

§ 2000e-3. Thus, the Stegall court was quite correct to assume

the mixed-motive defense continues to be a complete bar to

liability in a Title VII retaliation action. Today, the majority

extends Stegall’s holding to § 1981 retaliation actions (but

not to § 1981 discrimination actions) and holds mixed motive

is a complete defense to liability under a § 1981 retaliation

claim. 

The majority’s decision to re-affirm Stegall, but extend

§ 2000e-5(g)(2)(B) to § 1981 discrimination actions, leads to

some puzzling results.14 First, under the majority’s holding,

the mixed-motive limitations to Title VII discrimination

claims, while inapplicable to Title VII retaliation claims, are

applicable to § 1981 discrimination claims. It would seem to

defy logic to apply the mixed-motive limitations under

§ 2000e-5(g)(2)(B) to a § 1981 action, which is situated in a

wholly different part of the United States Code, but not to a

Title VII retaliation claim under § 2000e-3, which is, after all,

a Title VII claim itself. Second, there is no reason why mixed

motive should be a complete defense to liability in a § 1981

retaliation action, but not in a § 1981 discrimination action.

There is nothing in § 1981 that supports this distinction. 

14The majority’s conclusion that mixed motive is a complete defense to

liability for § 1981 retaliation actions also undermines its earlier conclusion that the mixed-motive defense was only a defense to damages, but not

to liability, under § 1981 when the 1991 CRA was enacted. See supra note

8. 

13190 METOYER v. SCREEN ACTORS GUILD
Third, the majority’s extension of § 2000e-5(g)(2)(B) to

§ 1981 implicitly parts company with our sister circuits that

interpret § 2000e-5(g)(2)(B) to be inapplicable to claims

brought under the Age Discrimination in Employment Act

(“ADEA”). See Baqir v. Principi, 434 F.3d 733, 745 n.13 (4th

Cir. 2006); Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506,

512 n.3 (3rd Cir. 2004); Lewis v. Young Men’s Christian

Ass’n, 208 F.3d 1303, 1305 (11th Cir. 2000). Even though

ADEA actions, like § 1981 actions, are governed by Title VII

case law, our sister circuits follow the plain language of

§ 2000e-5(g)(2)(B) and hold the limitations to the mixedmotive defense do not apply to ADEA claims. Lewis, 208

F.3d at 1304-05. 

Finally, the majority implicitly departs from our sister circuits which hold the plain language of § 2000e-5(g)(2)(B) is

inapplicable to yet other sections of the United States Code.

See Norbeck v. Basin Elec. Power Coop., 215 F.3d 848, 852

(8th Cir. 2000) (holding the 1991 CRA did not alter the

mixed-motive defense under the False Claims Act and the

Price Waterhouse mixed-motive analysis governs the claim);

Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1084 n.5,

1085 (11th Cir. 1996) (holding § 2000e-5(g)(2)(B) is inapplicable to § 1983 actions).15

Thus, I would join our sister circuits in holding § 2000e5(g)(2)(B) is inapplicable to any claim other than a Title VII

discrimination action brought under § 2000e-2(m) . . . just as

it says. 

15The Eighth Circuit holds § 2000e-5(g)(2)(B) does apply to actions

brought under the Americans with Disabilities Act (“ADA”). See Pedigo

v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995). Unlike

§ 1981, however, the text of the ADA expressly incorporates the “powers,

remedies, and procedures” of Title VII, including § 2000e-5. See 42

U.S.C. § 12117(a). 

METOYER v. SCREEN ACTORS GUILD 13191
II.

Having concluded § 2000e-5(g)(2)(B) has no impact on

§ 1981, I now turn to the application of the law to the facts

of this case. Because § 2000e-5(g)(2)(B) did not alter the

mixed-motive analysis under § 1981, I must analyze this case

under the Price Waterhouse standard, pursuant to which an

employer’s mixed motive in making an employment decision

remains a complete defense to liability to a § 1981 claim.

Accordingly, if the Guild can establish no triable issue of fact

exists that it would have fired Metoyer in the absence of any

discriminatory motive, the district court’s summary judgment

for the Guild must be affirmed. 

Metoyer asserts three § 1981 claims in her complaint: (1)

discriminatory breach of contract for failing to confirm her as

the National Director of Affirmative Action; (2) wrongful termination; and (3) retaliation. The majority affirms the district

court’s summary judgment on the discriminatory breach of

contract claim, and I join that holding. However, I disagree

with the majority’s holding on the retaliation and wrongful

termination claims, which reverses the district court’s grant of

summary judgment for the Guild. I would affirm the district

court’s summary judgment on all three claims.16

16The majority chooses not to use the McDonnell Douglas framework

in conducting its analysis. Instead, the majority relies on our decision in

McGinest v. GTE Service Corp., 360 F.3d 1103, 1122 (9th Cir. 2004), to

forego the McDonnell Douglas burden-shifting framework. In McGinest,

we held “when responding to a summary judgment motion . . . [the plaintiff] may proceed by using the McDonnell Douglas framework, or alternatively, may simply produce direct or circumstantial evidence

demonstrating that a discriminatory reason more likely than not motivated

[the employer].” Id. While the majority is correct that “ ‘nothing compels

the parties to invoke the McDonnell Douglas presumption,’ ” id. (citations

omitted), where, as here, the plaintiff relied exclusively on the McDonnell

Douglas framework before the district court, we ought not change to a different standard on appellate review for no apparent reason. [SER 65:7-

10]. Indeed, we have previously held: 

13192 METOYER v. SCREEN ACTORS GUILD
A.

The majority holds the district court erred in granting summary judgment on the wrongful termination claim because

Metoyer presented direct and circumstantial evidence demonstrating that the Guild harbored discriminatory animus toward

African-Americans. I disagree. I would affirm the district

court’s grant of summary judgment for the Guild and hold

Metoyer failed to establish a prima facie case of wrongful termination based on discrimination. 

To establish a prima facie case of discrimination, Metoyer

must show (1) she belongs to a protected class, (2) she was

qualified for the position, (3) she was subjected to an adverse

employment action, and that (4) similarly situated individuals

outside her protected class were treated more favorably. Aragon v. Republic Silver State Disposal Co., 292 F.3d 654, 658

(9th Cir. 2002). 

Metoyer fails to establish the fourth element of her prima

facie case (“disparate treatment”). To attempt to establish disparate treatment, Metoyer offers solely her own declaration.

Therein, Metoyer declares she told John McGuire about the

misuse of the Industry Advancement and Cooperation Fund

(“IACF”) grants by Shawna Brakefield, Sharon Jensen, and

Paul Ward, but they were neither investigated nor disciplined.

[ER 38:21-23]. 

Ordinarily, we decline to consider arguments raised for the first

time on appeal. This rule serves to ensure that legal arguments

are considered with the benefit of a fully developed factual

record, offers appellate courts the benefit of the district court’s

prior analysis, and prevents parties from sandbagging their opponents with new arguments on appeal. 

Dream Palace v. County of Maricopa, 384 F.3d 990, 1005 (9th Cir. 2004)

(citations omitted). Neither Metoyer nor the majority asserts any justification for departing from this general rule. Therefore, I conduct my analysis

using the McDonnell Douglas framework. 

METOYER v. SCREEN ACTORS GUILD 13193
As an initial matter, Metoyer’s declaration is insufficient

because it does not establish Brakefield, Jensen, and Ward

were outside her protected class. The declaration neither identifies their respective races nor states they are all not African

American. 

Even if I were to assume Brakefield, Jensen, and Ward are

Caucasian, as Metoyer’s briefs assert, Metoyer’s declaration

is insufficient because it does not show Brakefield, Jensen,

and Ward were “similarly situated [to Metoyer] . . . in all

material respects.” Moran v. Selig, 447 F.3d 748, 755 (9th

Cir. 2006); Vasquez v. County of L.A., 349 F.3d 634, 641 (9th

Cir. 2004) (holding “individuals are similarly situated when

they have similar jobs and display similar conduct”); id. at

641 n.17 (citing Hollins v. Atlantic Co., Inc., 188 F.3d 652,

659 (6th Cir. 1999) (holding that, to be similarly situated, an

employee must have the same supervisor, be subject to the

same standards, and have engaged in the same conduct)).

First, Metoyer was a grant administrator, whereas according

again to Metoyer, Brakefield, Jensen, and Ward were grant

recipients. [ER 38:23 (“these three grant recipients”)].

Metoyer’s declaration does not identify who, if anyone, at the

Guild administered the Brakefield, Jensen, and Ward grants.

Second, unlike Metoyer, who was a Guild employee, Brakefield and Ward were “independent contractors;”

17 Jensen is

not identified as either a Guild employee or an independent contractor.18 [ER 38:21-2]. Third, Metoyer’s declaration does not

establish or even claim Brakefield, Jensen, and Ward (1) violated the Guild’s strict policy prohibiting Guild employees

from receiving compensation of any kind from IACF funds,

or (2) fabricated invoices that had the effect of concealing the

17Metoyer’s declaration does not indicate whether Brakefield and Ward

were independent contractors of the Guild or of the IACF. 

18Of course, as on all elements of a disparate treatment case, the claimant has the burden of showing others were “similarly situated” before she

can establish she was treated differently. This burden, Metoyer utterly fails

to carry. 

13194 METOYER v. SCREEN ACTORS GUILD
true recipient of IACF funds from the Guild. Finally, the declaration shows that in the case of Brakefield, Jensen, and

Ward, the Guild was confronted only with suspicions,

whereas in Metoyer’s case, it was confronted with invoices

admitted by Metoyer to have been fabricated from whole

cloth by Metoyer personally, or her PRC business partner,

Rachelle Bolding. 

Accordingly, Metoyer failed to make out a prima facie case

of wrongful termination because she failed to establish similarly situated individuals outside her protected class were

treated more favorably.19 Thus, I would affirm the district

court’s grant of summary judgment for the Guild on

Metoyer’s wrongful termination claim. 

B.

Metoyer’s retaliation claim survives the three-step McDonnell Douglas analysis.20 Nevertheless, I disagree with the

majority that the Guild has not presented sufficient evidence

to support summary judgment based on the mixed-motive

defense. I would affirm the district court’s summary judgment

for the Guild on the retaliation claim because no triable issue

of fact exists as to the Guild’s mixed-motive defense. 

19Even if Metoyer established a prima facie case of wrongful termination, the Guild would still be entitled to summary judgment because no triable issue of fact exists as to the Guild’s mixed-motive defense. See infra

Part II.B. 

20First, the district court held plaintiff established a prima facie case of

retaliation, which the Guild does not appeal. Second, the Guild met its

burden of asserting a nondiscriminatory reason for Metoyer’s termination,

namely, Pricewaterhouse Cooper’s (“PwC”) conclusions that Metoyer

transferred the Guild’s funds to friends, family, and business partners, and

falsified invoices. Third, Metoyer has established a triable issue of fact as

to pretext because there is a nexus sufficient for purposes of summary

judgment, albeit a tenuous one, between Leonard Chassman’s discriminatory remarks and Metoyer’s termination. 

METOYER v. SCREEN ACTORS GUILD 13195
Under the mixed-motive defense, an employer can avoid

liability by establishing that it would have made the same

decision absent any discriminatory motive. See Price Waterhouse, 490 U.S. at 244-45. Even though the majority is correct that the mixed-motive inquiry is a factual one, this case

presents an unusual set of facts warranting summary judgment

for the Guild. 

What makes this case fit for summary adjudication is that

the underlying facts of Metoyer’s misconduct are admitted by

Metoyer herself. It is undisputed that the investigation began

when Sofia Banks, a temporary employee at the Guild and an

African-American woman, discovered a suspicious invoice in

Metoyer’s inbox. Metoyer admits this invoice was fabricated.

As Metoyer testified in her deposition, she had her PRC partner, Rachelle Bolding, create the invoice charging the Guild

$10,736 for seven events that never occurred. [See ER 46:92-

94]. Metoyer then signed a check request listing the same

seven events, causing the Guild to transfer $10,736 in Guild

funds to LMU to cover Family Fun Fest expenses. [ER

4:500-01]. LMU then paid a portion of these funds to Celine

Bae, a Guild employee, and to Metoyer’s husband’s production company. 

It is also undisputed that when LMU submitted an invoice

to Metoyer for $2,197 in excess Family Fun Fest costs, which

listed Bae and Metoyer’s husband’s company as payees,

Metoyer personally fabricated a bogus invoice on LMU letterhead (without mention of Bae or Metoyer’s husband) that

charged the Guild’s IACF trust account $2,197 for a reception

in Dr. George Gerbner’s honor.21 Metoyer submitted this

bogus invoice, not the one identifying Bae and Metoyer’s hus21No separate event honoring Dr. Gerbner was ever held. Rather,

although acknowledging that Dr. Gerbner was not in attendance, Metoyer

claims Dr. Gerbner was “honored” at the Family Fund Fest. There is no

evidence that Dr. Gerbner even knew he was being “honored” or how he

was “honored.” 

13196 METOYER v. SCREEN ACTORS GUILD
band’s company as payees, and a signed check request to the

Guild’s accounting department, causing it to pay $2,197 in

IACF funds to LMU. 

Similarly, it is undisputed that Metoyer caused Peter

Nguyen to receive $5,000 in IACF grant funds for performing

legal research and offering legal advice while he was not a

licensed attorney. It is also undisputed that Nguyen received

this payment while a Guild employee, an apparent22 violation

22Metoyer offers no evidence disputing the following facts that suggest

she fabricated a consulting job in order to supplement Nguyen’s Guild salary with $5,000 in IACF grant funds after the Guild decided not to meet

Nguyen’s salary demand—which just happened to be $5,000. In 2000,

Nguyen was employed in the Guild’s Special Projects Division. [ER

46:18]. In December 2000, a strike involving the Guild ended and

Nguyen’s position was eliminated. [Id.] Knowing that his position was

coming to an end, Metoyer interviewed Nguyen to be her Executive Associate and selected him for the position on December 7, 2000. [Metoyer’s

Declaration; ER 46:21]. Salary negotiations between Jeffery Spencer

(“Spencer”), a recruiter in the Guild’s human resources department, and

Nguyen reached an impasse with Nguyen demanding $55,000 and the

Guild offering $50,000. [ER 46:18]. Shortly thereafter, on December 28,

2000, Metoyer sent Spencer an e-mail stating, “We have a plan.” [ER

46:23]. 

Five days later, Nguyen submitted a letter to LMU stating: “At the

behest of Dr. Patricia Heisser-Metoyer of the Screen Actors Guild, I have

rendered legal consultation services in furtherance of the skills bank reorganization project. Please accept this invoice for $5,000 in consideration

for such services.” [ER 46:214]. On January 3, 2001, Nguyen accepted

employment as Metoyer’s Executive Associate with a start date of January

8, 2001, and a starting salary of $50,000. [ER 46:212]. On January 8,

2001, Hope Singer, outside legal counsel for the Guild, met with Metoyer

and the Guild’s in-house counsel, Vicki Shapiro, regarding the need for a

legal opinion on whether it was lawful for the Guild to ask Guild members

to identify their race, nationality, gender, disability, and other characteristics on the Skills Bank questionnaire—the same legal question Nguyen

requested $5,000 in compensation for researching. [ER 52:2-3]. At no

time during this meeting did Metoyer indicate Nguyen had been asked to

research or actually researched this issue. [Id.] Singer researched and analyzed the issue for two hours and informed Shapiro of her conclusion that

the questionnaire was in full compliance with the law. [Id.] On January 29,

METOYER v. SCREEN ACTORS GUILD 13197
of the Guild’s undisputed policy strictly prohibiting Guild

employees from receiving compensation from IACF funds.

Also undisputed is the fact that Metoyer caused Rachelle

Bolding to receive $20,000 in IACF funds shortly after Bolding left the Guild. From the Guild’s perspective, the payment

to Bolding was particularly egregious because the Guild had

reason to believe Bolding and Metoyer were business partners

in PRC,23 an event planning company. 

These findings of misconduct were the result of an investigation conducted by PwC, a well-respected third-party

accounting firm. PwC was hired by IACF, a separate legal

entity from the Guild. The IACF board voted to retain PwC

to investigate all outstanding grants at a board meeting where

the trustees discussed the need for greater accountability of

grant funds—in general terms and without naming Metoyer.

PwC independently concluded Metoyer made questionable

payments to Bae, Nguyen, Bolding, and Metoyer’s husband’s

production company. 

Metoyer admitted to all of this misconduct when she was

interviewed by two PwC auditors in the presence of her attorney. [ER 73:115]. Thus, the facts underlying Metoyer’s

misconduct—the fabricated invoices, the transfers of funds in

violation of the Guild’s policies, the lack of documentation

for services rendered—are all undisputed. Metoyer contests

only the propriety of the transactions, claiming that she was

2001, Nguyen received $5,000 in IACF funds for legal consultation services on the same issue, by happenstance the exact sum the Guild was

unwilling to add to his salary. Of course, no one contends Metoyer had the

authority to overrule Spencer in setting Nguyen’s salary. 

23PwC concluded the first initials of Patricia Metoyer, Rachelle Bolding, and Celine Bae make up the name “PRC.” Metoyer admits the “P” in

“PRC” is derived from her first name (Patricia). [ER 38:47-48]. However,

Metoyer disputes she was a business partner in PRC, contending instead

that she acted as a mentor and a “big sister” to Rachelle Bolding and

Celine Bae in PRC’s operations. [Id.]

13198 METOYER v. SCREEN ACTORS GUILD
authorized to make payments, but does not contest the Guild

strictly prohibits current employees from receiving compensation in any form from IACF funds. 

After interviewing Metoyer and giving her an opportunity

to explain these questionable transactions, the Guild concluded she failed to provide adequate explanations. There is

no evidence in the record suggesting either PwC’s or the

Guild’s conclusions were not made in good faith. 

Nevertheless, the majority holds three pieces of evidence in

the record undermine the Guild’s mixed-motive defense and

create a triable issue of fact. First, the majority relies on “Metoyer’s allegation that other persons engaged in questionable

practices related to IACF funds and faced no disciplinary consequences.” The “other persons” to which the majority refers

are presumably Brakefield, Jensen, and Ward. For the reasons

outlined above in Part II.A, however, Brakefield, Jensen, and

Ward are not similarly situated to Metoyer and do not provide

a valid basis for comparison. 

Further, Brakefield, Jensen, and Ward were not investigated because of Metoyer’s own refusal to cooperate with an

investigation. Following the March 22, 2001, PwC interview

where Metoyer claimed Brakefield, Jensen, and Ward had

engaged in questionable conduct, John McGuire decided to

investigate Metoyer’s allegations. [ER 56:55-6]. Instead of

terminating Metoyer for her theft, McGuire placed her on paid

administrative leave and retained O’Melveny & Myers, then

completely unaffiliated with the Guild, to investigate

Metoyer’s claims. [Id.] Nevertheless, O’Melveny & Myers

was unable to make any findings with respect to Metoyer’s

claims because Metoyer refused to participate in the investigation, “notwithstanding numerous requests that she provide

information regarding any and all matters she wanted investigated.” [Id.] McGuire decided to fire Metoyer only after he

was informed that O’Melveny & Myers was unable to determine the merits of Metoyer’s allegations due to her refusal to

METOYER v. SCREEN ACTORS GUILD 13199
cooperate. [ER 56:6-7]. Metoyer now asserts, and the majority holds, there is a triable issue of fact as to the Guild’s

mixed-motive defense because the Guild did not investigate

misconduct by Brakefield, Jensen, and Ward—even though

Metoyer herself undermined the investigation. According to

the majority, Metoyer can have her cake (thwart the investigation by refusing to cooperate) and eat it too (sue the Guild for

the failed investigation). 

Second, the majority cites to a written declaration by Ron

Thompson, C.P.A., that “there were questions concerning

whether the [PwC] investigation truly encompassed all outstanding grants.” First, it is axiomatic that asking a question

does not establish the facts related in the question. Thompson’s “questions” prove nothing, one way or the other. Second, Thompson based his “questions” on the final audit report

submitted by PwC, which contained only “the results of [the]

grant review for grants managed by” Metoyer. [ER 4:521].

The majority fails to explain, however, how this statement

evinces any bias on the part of the Guild. 

The majority’s imputation of bias to the Guild based on the

statements in the PwC report is inapposite. PwC was retained

by IACF, which is a separate legal entity from the Guild. [ER

73:12-13, 73:111-12]. Indeed, the Guild, as a recipient of

IACF grants, was the target of PwC’s investigation, not its

overseer. Thus, the Guild was not in a position to influence

PwC’s investigation. 

Further, Metoyer was not the sole subject of the PwC audit

because it is undisputed that PwC ultimately investigated 26

IACF grants, only three of which were administered by

Metoyer. [ER 73:111-12]. James Hunt (“Hunt”), who was

one of the two PwC employees to conduct the audit, stated in

a declaration that PwC was not “asked to investigate only Dr.

Metoyer’s grants, but all grants that had been awarded to the

Guild as well as grants that had been awarded to other entities.” [Id.] Bruce Dow, the Administrative Director of the

13200 METOYER v. SCREEN ACTORS GUILD
IACF, stated in his declaration that five other grant administrators at the Guild were investigated, four of whom were

Caucasian and one of whom was an African-American

woman. [ER 73:14]. Hunt stated the reason why the final

report detailed misconduct only by Metoyer was because PwC

“did not find any signs of questionable expenditures or irregularities with respect to any [other] IACF grants.” [ER

73:112]. 

Finally, the majority also finds support from the statement

of Daniel Smith-Christopher, a professor at LMU. The majority reasons that because PwC’s interview with Dr. SmithChristopher focused only on Metoyer, PwC’s investigation

must have been influenced by discriminatory animus toward

Metoyer. The reason why PwC questioned Dr. SmithChristopher only about Metoyer is simple: PwC found evidence that Metoyer, and only Metoyer, entered into an “escrow agreement”

24 with LMU wrongfully to transfer the

Guild’s funds. Where there was no evidence suggesting other

Guild employees used LMU to engage in misconduct, there

was no reason for PwC to question the LMU officials about

any other employee. 

24“Escrow” was the term Metoyer applied to the agreement. Of course,

it was nothing of the kind. An “escrow” requires a deposit of money pursuant to an agreement that calls for the transfer of the money upon the

happening of an event. The escrow holder is a neutral party who takes

instructions from both parties to the escrow and in strict adherence to the

escrow agreement or instructions. Here, there was (1) no escrow agreement, (2) no second party with an interest in the money that gave instructions; and (3) no deposit of title to property or other action required to

cause the escrow holder to transfer funds. LMU was no “escrow holder”;

it was a “cut out” used to cover Metoyer’s tracks as to who was getting

the Guild’s money. So long as the payees’ names were only at LMU, they

were not at the Guild. Anybody looking at the Guild’s records would see

only “LMU” as a payee. “[T]he only apparent reason to make the transfer

to LMU to then receive the invoices and make the payments was to prevent the Guild’s Accounting Department from questioning and learning of

the true recipients or personal uses of the funds.” [Hunt Declaration, ER

73:118]. 

METOYER v. SCREEN ACTORS GUILD 13201
In short, the majority sees smoke where there is no fire.

Based on the foregoing evidence, no triable issue of fact

exists that the Guild would have terminated any employee

found to have engaged in similar misconduct. Consequently,

I would affirm the district court’s summary judgment for the

Guild on the retaliation claim. 

C.

I also dissent from the majority’s reversal of summary

judgment on Metoyer’s discrimination and retaliation claims

under the California Fair Employment and Housing Act

(“FEHA”). I agree with the majority that the district court

erred in interpreting Metoyer’s statement in her supplemental

brief on a preemption issue as stipulating to the dismissal of

her FEHA claims. 

Notwithstanding this error, I would affirm the dismissal of

Metoyer’s FEHA claims on alternate grounds supported by

the record. Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924,

926 (9th Cir. 2003) (“We may affirm a district court’s judgment on any ground supported by the record, whether or not

the decision of the district court relied on the same grounds

or reasoning we adopt.”). Metoyer’s state law discrimination

claim fails because, as discussed above in Part II.A, Metoyer

has failed to establish a prima facie case of discrimination.

See Tarin v. County of L.A., 123 F.3d 1259, 1263 n.2 (9th Cir.

1997) (noting California courts apply the Title VII framework

to FEHA claims). 

Likewise, I would affirm the district court’s grant of summary judgment on Metoyer’s FEHA retaliation claims

because, as discussed above in Part II.B, no triable issue of

fact exists as to the Guild’s mixed-motive defense.25

25Although no California court has explicitly adopted the mixed-motive

defense as a bar to liability under FEHA, California courts have adopted

a jury instruction incorporating that defense. See BAJI 12.26 (“If you find

13202 METOYER v. SCREEN ACTORS GUILD
III.

In sum, the majority got it wrong as to the law and as to the

facts. The majority added words to a statute where the words

do not exist, and the majority created a triable issue of fact

where no triable issue of fact exists. I would affirm the district

court’s grant of summary judgment for the Guild in its

entirety. 

I respectfully dissent.

that the employer’s action, which is the subject of plaintiff’s claim, was

actually motivated by both discriminatory and non-discriminatory reasons,

the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to

make the same decision.”). Like § 1981, FEHA places no limitations on

the scope of this defense. 

METOYER v. SCREEN ACTORS GUILD 13203