FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD HITTLE, 

Plaintiff-Appellant, 

 v. 

CITY OF STOCKTON, California; 

ROBERT DEIS; LAURIE MONTES, 

Defendants-Appellees.

No.22-15485 

D.C. No. 2:12-cv00766-TLN-KJN 

ORDER AND 

AMENDED 

OPINION

Appeal from the United States District Court

for the Eastern District of California

Troy L. Nunley, District Judge, Presiding

Argued and Submitted March 27, 2023

San Francisco, California

Filed August 4, 2023

Amended May 17, 2024

Before: Ronald M. Gould and Sandra S. Ikuta, Circuit 

Judges, and Edward R. Korman,* District Judge.

*The Honorable Edward R. Korman, United States District Judge for the 

Eastern District of New York, sitting by designation.
2 HITTLE V. CITY OF STOCKTON

Order;

Opinion by Judge Korman; 

Dissent from Order by Judge Callahan; 

Dissent from Order by Judge Ikuta; 

Dissent from Order by Judge VanDyke 

SUMMARY**

Employment Discrimination 

The panel filed (1) an order amending the opinion filed 

on August 4, 2023, and denying a petition for panel 

rehearing and rehearing en banc; and (2) an amended 

opinion affirming the district court’s summary judgment in 

favor of defendants in Ronald Hittle’s employment 

discrimination action under Title VII and California’s Fair 

Employment and Housing Act. 

Hittle alleged that he was terminated from his position as 

Fire Chief for the City of Stockton based upon his religion 

and, specifically, his attendance at a religious leadership 

event.

In the amended opinion, the panel held that employment 

discrimination claims under Title VII and the California 

FEHA are analyzed under the McDonnell Douglas burdenshifting framework, under which the plaintiff must establish 

a prima facie case of discrimination by demonstrating that 

(1) he is a member of a protected class; (2) he was qualified 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
HITTLE V. CITY OF STOCKTON 3

for his position; (3) he experienced an adverse employment 

action; and (4) similarly situated individuals outside his 

protected class were treated more favorably, or other 

circumstances surrounding the adverse employment action 

give rise to an inference of discrimination. The burden then 

shifts to the defendant to articulate a legitimate, 

nondiscriminatory reason for the challenged 

actions. Finally, the burden returns to the plaintiff to show 

that the proffered nondiscriminatory reason is 

pretextual. Alternatively, the plaintiff may establish a prima 

facie case of disparate treatment by showing direct or 

circumstantial evidence of discrimination. Hittle was 

required to show that his religion was “a motivating factor” 

in defendants’ decision to fire him with respect to his federal 

claims, and that his religion was “a substantial motivating 

factor” with respect to his FEHA claims.

The panel concluded that Hittle failed to present 

sufficient direct evidence of discriminatory animus in 

defendants’ statements and the City’s notice of intent to 

remove him from City service. Hittle also failed to present 

sufficient specific and substantial circumstantial evidence of 

religious animus by defendants. The district court’s grant of 

summary judgment in defendants’ favor was appropriate 

where defendants’ legitimate, non-discriminatory reasons 

for firing Hittle were sufficient to rebut his evidence of 

discrimination, and he failed to persuasively argue that these 

non-discriminatory reasons were pretextual.

Dissenting from the denial of rehearing en banc, Judge 

Callahan, joined by Judge VanDyke, wrote that she joined 

her dissenting colleagues’ concern that the panel’s opinion 

fails to follow the Supreme Court’s directive prohibiting 

discrimination based on religion. She also feared that the 

panel’s opinion would be read to foreclose claims of 
4 HITTLE V. CITY OF STOCKTON

discrimination for all protected classes because it gives only 

lip service to the Supreme Court’s directive that, on 

summary judgment, the evidence must be viewed in the light 

most favorable to the nonmoving party.

Dissenting from the denial of rehearing en banc, Judge 

Ikuta, joined by Judges Callahan and R. Nelson, wrote that 

the panel’s opinion is in tension with other Ninth Circuit 

Title VII cases, which have held that, as a general matter, the 

plaintiff in an employment discrimination action need 

produce very little evidence in order to overcome an 

employer’s motion for summary judgment.

Dissenting from the denial of rehearing en banc, Judge 

VanDyke, joined by Judge Callahan as to Parts I, II, III, and 

IV(A), wrote that Hittle produced ample evidence of the 

City’s intent to discriminate, and that was enough to at least 

survive summary judgment. Judge VanDyke wrote that the 

panel abdicated its responsibility to read the record in the 

light most favorable to Hittle, allowed employers to escape 

liability for repeating discriminatory remarks simply by 

hiding behind those who say them first, and mangled Title 

VII’s “motivating factor” analysis. Judge VanDyke also 

wrote that, in his view, the alternative reasons offered by the 

City were not legitimate or nondiscriminatory, but are 

instead further evidence of the City’s discriminatory intent 

and rest on a misunderstanding of its obligations under the 

Establishment Clause based on the now-discredited 

endorsement test.
HITTLE V. CITY OF STOCKTON 5

COUNSEL

Elisabeth C. Butler (argued) and Aaron M. Streett, Baker 

Botts LLP, Houston, Texas; Alan J. Reinach and Jonathon 

Cherne, Church State Council, Westlake Village, California; 

Kelly J. Shackelford, Jeffrey C. Mateer, and David J. 

Hacker, First Liberty Institute, Plano, Texas; Stephanie N. 

Taub, First Liberty Institute, Cabot, Arkansas; Kayla A. 

Toney, First Liberty Institute, Washington, D.C.; for 

Plaintiff-Appellant.

Spencer J. Wilson (argued), Arthur A. Hartinger, Ryan P. 

McGinley-Stempel, and Geoffrey Spellberg, Renne Public 

Law Group, San Francisco, California; for DefendantsAppellees.

David H. Thompson and Joseph O. Masterman, Cooper & 

Kirk PLLC, Washington, D.C., for Amicus Curiae Global 

Leadership Network.

Christopher T. Holinger, Bradley J. Lingo and J. Alex 

Touchet, Robertson Center for Constitutional Law, Regent 

University School of Law, Virginia Beach, Virginia; for 

Amicus Curiae Robertson Center for Constitutinal Law.

Nicholas M. Bruno, Alyssa B. McDaniel, and Zachary T. 

Nelson, Beck Redden LLP, Houston, Texas; Sue Ghosh 

Stricklett, American Hindu Coalition, Sterling, Virginia; for 

Amici Curiae Sikh Coalition, Asma Uddin, Jewish Coalition 

for Religious Liberty, American Hindu Coalition, Coalition 

for Jewish Values, Islam and Religious Freedom Action 

Team, and Coalition of Virtue.

Matthew T. Martens, David M. Cook, and G. Edward Powell 

III, Wilmer Cutler Pickering Hale and Dorr LLP, 

Washington, D.C., for Amicus Curiae Samaritan’s Purse.
6 HITTLE V. CITY OF STOCKTON

ORDER

The Opinion filed on August 4, 2023, is hereby amended. 

The amended opinion will be filed concurrently with this 

order.

Appellant filed a petition for panel rehearing and 

rehearing en banc. Dkt. 74. Judge Gould and Judge Korman 

voted to deny the petition for panel rehearing. Judge Gould 

voted to deny the petition for rehearing en banc, and Judge 

Korman so recommended. Judge Ikuta voted to grant the 

petition for panel rehearing and the petition for rehearing en 

banc. The full court was advised of the petition for rehearing 

en banc. A judge requested a vote on whether to rehear the 

matter en banc. The matter failed to receive a majority of 

the votes of the nonrecused active judges in favor of en banc

consideration. Fed. R. App. P. 35(a). Judge Owens recused 

himself and did not participate in the deliberations or vote. 

Appellant’s petition for panel rehearing or rehearing en 

banc, Dkt. 74, is DENIED. 

OPINION

KORMAN, District Judge:

Plaintiff-Appellant Ronald Hittle (“Hittle”) was an atwill employee of the City of Stockton, California (the 

“City”) and served as the City’s Fire Chief from 2005 

through 2011. During his tenure, Hittle engaged in conduct 

that troubled his employer, and led ultimately to his 

termination. The City hired an outside independent 

investigator, Trudy Largent (“Largent”), to investigate 

various allegations of misconduct. In a 250-page report 
HITTLE V. CITY OF STOCKTON 7

referencing over 50 exhibits, Largent sustained almost all of 

the allegations of misconduct against Hittle. 

Largent’s Report specifically concluded that Hittle: 

(1) lacked effectiveness and judgment in his ongoing 

leadership of the Fire Department; (2) used City time and a 

City vehicle to attend a religious event, and approved onduty attendance of other Fire Department managers to do the 

same; (3) failed to properly report his time off; (4) engaged 

in potential favoritism of certain Fire Department employees 

based on a financial conflict of interest not disclosed to the 

City; (5) endorsed a private consultant’s business in 

violation of City policy; and (6) had potentially conflicting 

loyalties in his management role and responsibilities, 

including Hittle’s relationship with the head of the local 

firefighters’ union. Based on the independent findings and 

conclusions set forth in Largent’s report, the City removed 

Hittle from his position as Fire Chief.

Hittle sued the City, former City Manager Robert Deis 

(“Deis”), and former Deputy City Manager Laurie Montes 

(“Montes”) (jointly, “Defendants”) claiming that his 

termination was in fact the result of unlawful employment 

discrimination in violation of Title VII of the Civil Rights 

Act of 1964 (“Title VII”) and California’s Fair Employment 

and Housing Act (“FEHA”). Hittle alleged that Deis and 

Montes terminated his employment as Fire Chief “based 

upon his religion.” Specifically, Hittle alleges that he was 

fired for attending a religious leadership event. 

On February 18, 2021, Defendants moved for summary 

judgment seeking dismissal of all of Hittle’s claims. Hittle 

subsequently cross-moved for partial summary judgment as 

to his federal and state religious discrimination claims on 

April 1, 2021. On March 1, 2022, the district court denied 
8 HITTLE V. CITY OF STOCKTON

Hittle’s motion and granted Defendants’ motion as to all of 

Hittle’s claims. Hittle timely appealed. 

BACKGROUND

In deciding a motion for summary judgment, we view 

the evidence in the light most favorable to the non-moving 

party, drawing all reasonable inferences in that party’s favor. 

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986). Here, we recite the facts in the light 

most favorable to Hittle. Hittle was the Fire Chief of the 

Stockton Fire Department during the period relevant to this 

appeal. In that capacity, Hittle initially reported directly to 

Gordon Palmer, Stockton’s City Manager. After Palmer 

retired in 2009, Hittle began reporting directly to Montes, 

who had been appointed Deputy City Manager in 2008. 

In May 2010, the City received an anonymous letter 

purporting to be from an employee of the Stockton Fire 

Department. The letter described Hittle as a “corrupt, racist, 

lying, religious fanatic who should not be allowed to 

continue as the Fire Chief of Stockton.” In her subsequent 

affidavit in support of her motion for summary judgment, 

Montes stated that the source of this information was not an 

anonymous individual but a high-ranking Fire Department 

manager, who had told her that “Hittle favored members of 

that coalition—who all shared his Christian faith,” and that 

her concern was that “Hittle was providing favorable 

treatment and assignments” to these other employees. About 

one month after the City received this letter, Montes told 

Hittle in a meeting that she had “heard [he] was part of a 

group of folks, a Christian Coalition, and that [he] shouldn’t 

be involved in that.” When Hittle stated that “[a]s a 

supervisor, you can’t tell me I can’t practice my faith when 

I’m off duty,” Montes asked him about his “off duty 
HITTLE V. CITY OF STOCKTON 9

Christian activities.” Hittle told her that “there was no 

Christian clique within the fire department that was meeting 

together, nor did she have any right to tell [Hittle] what [he] 

could or could not do with respect to [his] religion while off 

duty.” According to Hittle, during this conversation, Montes 

said that Hittle should not “be a part of anything like that as 

the fire chief, and [he] should refrain from doing any of those 

types of activities” with other firefighters. Montes did not 

specifically explain what “those type of activities” 

comprised, but Hittle thought “the inference was the fact that 

I may have meetings with them, I might pray with them, I 

may have opportunity to speak to them about God, 

leadership in that respect.” Hittle and Montes are in apparent 

agreement that Montes did not initiate the “Christian 

Coalition” term herself. 

On July 1, 2020, Bob Deis became City Manager. At 

Hittle’s and Deis’s first meeting, Hittle expressed to Deis 

that he is “a religious man” and that he is “a Christian.” Deis 

responded with “a blank stare, and there was a long pause.” 

Deis’s “body language and stare made [Hittle] very 

uncomfortable.” Hittle felt that Deis’s “coldness and 

rejection” was because Hittle had expressed that he was a 

Christian, and that Deis had heard about the anonymous 

letter and the “Christian Coalition.” Hittle had the “distinct 

impression” that Deis’s “mind was already made up about” 

Hittle. 

In her oversight of Hittle, Montes became concerned 

about Hittle’s performance as Fire Chief in other ways

unrelated to Hittle’s alleged religious favoritism. 

Specifically, Montes claimed that Hittle worked against the 

City’s plans to cut public budget costs and expenses, unlike 

all of the other City Department heads during that time who 

were cooperating with the City Manager’s office in an 
10 HITTLE V. CITY OF STOCKTON

ultimately unsuccessful effort to avoid the City declaring 

bankruptcy. As another example, in 2010, a proposition 

referred to as “Measure H” was slated for the ballot that 

November. Some members of the City’s Fire Department 

opposed Measure H because they believed that it would 

undermine Fire Department autonomy and authority. In 

response, several off-duty firefighters visited nursing homes 

wearing their on-duty Fire Department clothing and told the 

residents that Measure H, if passed, would prevent the Fire 

Department from providing timely services to seniors in the 

event of an emergency. When the City Manager’s office 

received complaints about on-duty firefighters advocating 

against Measure H, Deis and Montes raised the issue with 

Hittle. Montes claimed that Hittle agreed that the conduct 

was not acceptable but did not make an effort to stop it from 

occurring. Hittle disputes this allegation, and states that 

“Local 456 owned an antique fire engine that displayed a 

banner: ‘Stockton Professional Firefighters,’” which had 

been used for many years for campaigning off-duty prior to 

the termination of Hittle, with no objection from 

management. The union used the antique fire truck without 

objection from Human Resources, Deis, or Montes for 

holidays and community events for many years and Hittle 

had not been disciplined for the union using the antique fire 

truck on off-duty time until 2010, when it was raised by Deis 

and Montes for the first time. 

In light of these and other issues, including what Deis 

believed was Hittle’s failure to “assure that proper decorum 

and ethical parameters were in place and enforced in his 

Department,” Deis instructed Montes to continue directly 

supervising Hittle. 

According to Montes, during the fall of 2010, due to 

what she “believed was a clear lack of leadership and 
HITTLE V. CITY OF STOCKTON 11

management skills displayed by Chief Hittle,” Montes 

directed Hittle “to find and attend a leadership training 

program.” Montes states that she specifically directed Hittle 

to “find a program intended for Fire Chiefs, or at least 

designed for the upper management of public entities,” and 

was clear to Hittle that she wanted the leadership training to 

be related specifically to public sector service. Montes 

claims that she suggested to Hittle that the League of 

California Cities may provide such training, and that she was 

aware that the Federal Bureau of Investigation and the Post 

Officers Standards and Training offered upper management 

training programs to police departments through that group. 

Hittle stated that he reviewed various leadership training 

programs, but was unable to find any that were in California, 

or at a cost that the Fire Department could afford. Hittle 

subsequently was gifted four tickets to an event called the 

Global Leadership Summit (the “Summit”). The Summit 

was sponsored by a church, and its registration materials 

stated that: “The leadership summit exists to transform 

Christian leaders around the world with an injection of 

vision, skill Development and inspiration for the sake of the 

LOCAL CHURCH.” However, according to a magazine 

article in the record, the Summit is a “pop-up business 

school” that “bring[s] a stellar faculty . . . to teach pastors 

and laypeople leadership and management.” The Summit 

had “over 60,000 leaders . . . gather” and was “broadcast 

live . . . to more than 225 satellite sites across North 

America.” Previous “speakers includ[ed] former President 

Bill Clinton, former Secretary of State Colin Powell, Jack 

Welch, and Carly Fiorina, former CEO of Hewitt-Packard.” 

The same magazine referred to the Summit as “learning from 

the business world’s best.” Hittle explained that his 

“purpose in attending the leadership conference was to learn 
12 HITTLE V. CITY OF STOCKTON

leadership principles and enhance leadership skills that 

would assist [him] to lead the” fire department. Hittle also 

states that there was no policy that prohibited employees 

from attending religious programs while on duty. Along 

with three fellow firefighters, Hittle traveled in a City 

vehicle to Livermore, California to attend the Summit on 

August 5 and 6, 2010. 

On September 3, 2010, the City received a second 

anonymous letter stating that Hittle and other fire department 

personnel had “attended a religious function on city time” 

using “a city vehicle.” Deis asked Montes to evaluate the 

issues raised in the letter. According to Largent, Deis’s 

“concern[] about Hittle attending this event on City time 

[was] that ‘you cannot use public funds to attend religious 

events; even if under the guise of leadership development. It 

is not acceptable.’” 

When Montes asked Hittle about the allegations in the 

second letter, Montes alleges that Hittle confirmed that he 

had attended the Summit on City time, accompanied by three 

City firefighters, that they used a City vehicle to travel to the 

Summit, and that they were paid their regular compensation 

during their attendance. Montes states that Hittle 

“continually insisted that although this Willow Creek 

Summit did contain a religious component, there were 

several business oriented non-religious speakers,” and that 

he “defended his conduct claiming that this was appropriate 

leadership training.” 

Later, in a meeting with Hittle, Montes “again brought 

up the subject of there being a Christian Coalition in 

[Hittle’s] department, and that these are the people [he] 

associate[s] with.” Montes “told [Hittle] this wasn’t good, 

and that [he] should not be doing this.” She also told him he 
HITTLE V. CITY OF STOCKTON 13

should not have attended the leadership training. Hittle told 

Montes that the leadership training was the best he had ever 

attended, “there[ was] no Christian Coalition,” and “she 

could not tell me I can’t practice my religious faith, or with 

whom to associate.” Hittle “asserted [his] right to associate 

with other Christians and told [Montes] she had no right to 

tell [him] what [he] could do on [his] own time to practice 

[his] faith.” Hittle stated that Montes “raised her voice when 

accusing [him] of taking part in a Christian Coalition,” and 

“[w]hen the term [‘]Christian Coalition[’] was used by 

[Montes], it was clear [Montes] was saying it in a pejorative 

way, making it clear this was wrong and distasteful to her.” 

“Montes did not accept [Hittle’s] explanation” and 

continued to ask about Hittle’s “religious activities including 

the [Summit].” This is the principal basis for Hittle’s 

challenge to the adverse action against him. 

Subsequently, on October 15, 2010, the Stockton Record 

reported that Hittle co-owned a vacation property with the 

Firefighters’ Union President Dave Macedo (“Macedo”), 

Fire Marshal Matthew Duaime (“Duaime”), and retired Fire 

Captain Allen Anton. Montes claims that she learned of the 

conflict only after the newspaper article was published 

because Hittle had not previously disclosed this joint 

ownership to City officials. In Montes’s view, this coownership raised questions about Hittle’s impartiality with 

respect to “balancing the interests of the union and the 

taxpayers.” 

Montes issued a notice of a confidential investigation to 

Hittle on November 1, 2010 (identifying five issues) because 

of her perception that Hittle had “issues of non-cooperation 

and poor management practices.” Montes stated that even 

after she issued the notice of investigation, Hittle continued 

to engage in conduct that she found troubling. For example, 
14 HITTLE V. CITY OF STOCKTON

Macedo (president of the fire department union) admitted to 

providing Health Insurance Portability and Accountability 

Act (HIPAA) protected information to the media in an 

attempt to influence San Joaquin County to permit City 

firefighters to provide advanced life support at emergency 

scenes. Montes claims that Hittle imposed only minor 

discipline on Macedo and defended Macedo’s conduct, 

despite the fact that the leak resulted in the County suing the 

City and obtaining a preliminary injunction. 

Montes also discovered that Duaime had falsified his 

time records in two ways. First, he had attended the Summit 

with Hittle. Second, he would work overtime and not submit 

a request for the incurred compensation, instead “saving” 

that time and improperly submitting a request for 

compensation on a day on which he had not worked 

overtime. Hittle defended Duaime’s practices in a 

memorandum to Montes dated March 14, 2011, stating that 

Duaime had worked all the hours submitted, and had held 

accrued time off the books in order to avoid charging the 

City overtime. Montes alleges that Hittle refused to 

discipline Duaime until ordered to do so. 

In addition, at this time, the City was in the midst of a 

fiscal crisis and on the verge of declaring bankruptcy, and 

Deis and Montes “instructed all Department Heads to 

prepare layoff plans in order to reduce costs which could 

potentially help avoid the bankruptcy.” According to 

Montes, all Department Heads complied with this order 

except Hittle, who informed Montes that he could not agree 

to any layoffs or recommend a cut in staffing. As a result of 

Hittle’s failure to follow this directive, Deis and Montes 

placed Hittle on administrative leave pending the outcome 

of the investigation that had been initiated the previous 

November. 
HITTLE V. CITY OF STOCKTON 15

On March 25, 2011, the City retained Trudy Largent, an 

outside investigator with human resources experience, to 

investigate Hittle’s conduct. Largent interrogated Hittle at 

length regarding his Christianity and about the Summit. 

According to Hittle, the investigation was one-sided, 

because Largent did not investigate the nature of the 

leadership training provided by the Summit or contact the 

witnesses identified by Hittle. Hittle claims that Largent’s 

“demeanor and approach clearly communicated her lack of 

impartiality.” 

On August 5, 2011, Largent submitted to the City her 

Confidential Investigation Report (the “Largent Report”), 

which totaled over 250 pages and referenced more than 50 

exhibits. In Largent’s interview with Montes, Montes 

negatively referred to Christians. Montes stated: 

“Incidentally when I told [Hittle] to go get some leadership 

training he asked if he [c]ould use George Liepart and I told 

him no, he’s one of the church clique, and I said you know 

we need to get away from . . . you know going, going around 

the same mountain all the time.” The Largent Report 

characterized Hittle’s “use of City time and a City vehicle to 

attend a religious event” as the first “most serious act[] of 

misconduct.” The Largent Report repeated the term 

“religious event” over 15 times, and stated that “it [was] 

clear that the primary mission of the Global Leadership 

Summit was to specifically provide for the benefit of those 

of a particular religion, Christianity.” Indeed, the Largent 

Report makes clear that one of the key issues of the Fire 

Department’s investigation was on “[w]hether the Global 

Leadership Summit was a religious event,” and dedicated 

five pages to discussing its religious nature. In these pages, 

the Largent Report concluded that when Hittle “arrived at 

the Summit location . . . and observed where it was being 
16 HITTLE V. CITY OF STOCKTON

held [(a church)] this should have alerted Hittle that his 

participation and that of his managers would not be 

appropriate.” 

In the investigation of whether Hittle engaged in 

misconduct and violated City policy or Fire Department 

Procedures, the Largent Report made the following findings 

(in summary) as to each issue, and determined whether the 

City’s allegations were sustained or not sustained: 

1. The lack of effectiveness of Chief Hittle’s 

ongoing supervision and leadership of the 

Fire Department, judgment as a 

department head, and his contributions to 

the management team; “Sustained.” 

2. Chief Hittle’s failure to maintain proper 

discipline and order within the 

Department, contributing to a delay in 

investigating potential misconduct is 

“Not Sustained.” The allegation that 

Hittle has delayed in making 

recommendations as to appropriate level 

of discipline; “Sustained in part and 

Not Sustained in part.” 

3. Use of City time and City vehicle by 

Chief Hittle to attend a religious event; 

his failure to properly report time off, and 

Hittle potentially approving on-duty 

attendance at a religious event by Fire 

Department managers; “Sustained.”

4. Potential favoritism of employees by 

Chief Hittle and conflict of interest based 

on financial interest not disclosed to the 

City; “Sustained.” 
HITTLE V. CITY OF STOCKTON 17

5. Apparent endorsement of [a] private 

consultant’s business by Chief Hittle as 

an official of the City and potential 

conflict of interest by Hittle not disclosed 

to the City; “Sustained.” 

6. Failure by Chief Hittle to comply with 

management directions and his capability 

in respect to budget development; [“]Not 

Sustained.”

7. Potentially conflicting loyalties by Chief 

Hittle in his management role, 

responsibilities, and his relationship with 

the Firefighters Local 456 Union; 

“Sustained.”

After reviewing the Largent Report, Deis and Montes 

concluded that Chief Hittle should be removed from his 

position. In particular, Montes was concerned about the 

various findings that were sustained against Hittle in the 

Largent Report, and she and Deis did not believe that Hittle 

had provided them with any indication that he would attempt 

to correct his behavior or improve his management skills. 

Deis and Montes met with Hittle and offered to appoint 

Hittle to a Battalion Chief position so that he could remain 

at the fire department until he reached the retirement age of 

50, to which he was relatively close at that time. Hittle did 

not accept this offer, and informed Deis and Montes that he 

intended to retain counsel and bring a lawsuit. Hittle stated 

that “Deis got very angry,” “raising his voice and 

threaten[ing]” that if Hittle did not accept a demotion, he 

would face “a long expensive legal battle,” and his 

“reputation would suffer irreparable harm.” 
18 HITTLE V. CITY OF STOCKTON

On August 24, 2011, the City sent Hittle a notice of its 

intent to remove him from City service (the “Removal 

Notice”) for the reasons stated in the Largent Report, which 

was attached, and which included the following detailed 

descriptions of its findings:

1) On August 5 and 6, 2010, you used City 

time and resources to attend a religious 

leadership event. This conduct violated City 

Manager Directive No. FIN-08 and 

Article C, Section 11 of the Fire Department 

Procedures Manual. 

2) On August 5 and 6, 2010, you approved 

the attendance on City time of Deputy Chief 

Paul Willette, Division Chief Matt Duaime, 

and Fire Marshal Jonathan Smith at the same 

religious leadership event. This conduct 

violated City Manager Directive No. FIN-08 

and Article C, Section 11 of the Fire 

Department Procedures Manual. 

3) From 2004 through 2008, the City 

retained Integrated Services Group to provide 

consulting services to the fire department. At 

no time did you disclose to the City your 

personal relationship with the firm’s owner, 

George Liepart, or the fact that the two of you 

were engaged in a project to build a church 

school. Nor did you properly investigate 

complaints that in 2005 Liepart solicited 

donations from fire department employees 

for the church school project. This conduct 

violated City policy against conduct adverse 
HITTLE V. CITY OF STOCKTON 19

to the welfare and/or good reputation of the 

City. 

4) Despite receiving information in 2009 

that the Integrated Services Group website 

contained an endorsement by you under a 

photograph of you in your Fire Chief 

uniform, you failed to investigate whether the 

information was true. This tacit endorsement 

of Liepart’s firm violated City policy against 

conduct adverse to the welfare and/or good 

reputation of the City. 

5) You failed to disclose to the City that you 

co-owned a cabin with Captain Dave 

Macedo, also President of International 

Association of Firefighters Local 456 

(Union), and Division Chief Duaime. This 

violated your duty as a department head to 

disclose any actual or potential conflict of 

interest. Furthermore, this relationship raises 

questions as to why you failed to investigate 

Duaime’s improper reporting of 

compensatory time on his timesheets for May 

and August 2010. 

6) On March 29 and 30, 2011, you presented 

Deputy City Manager Laurie Montes with a 

Union proposal to put firefighters on a leave 

of absence instead of laying them off. This 

conduct was contrary to a department head’s 

duty to further the goals and policies of the 

City. 

7) Your failure to recommend appropriate 

discipline for misconduct by Captains Tony 
20 HITTLE V. CITY OF STOCKTON

Moudakis [for authorizing on-duty 

firefighters to assist his wife with a personal 

matter] and John Loverin [for falsifying dates 

on the Department’s official pay records] 

violated Article 3, section 9 of the Fire 

Department Rules and Regulations, which 

requires you to “see that proper discipline is 

maintained.” 

8) After the Union released confidential 

patient information to the media in 2007, you 

failed to address the issue with employees to 

prevent a recurrence. When confidential 

patient information was again released by the 

Union on September 9, 2010 you failed to

address preventative measures with 

employees. This conduct violated Article 3, 

section 9 of the Fire Department Rules and 

Regulations. 

9) Between July 13, 2010 and October 2010 

you failed to prevent members of the public 

from perceiving that firefighters were 

engaged in Union activities while on-duty. 

These activities included: wearing Union tshirts that closely resembled official City 

firefighter shirts while riding on a fire engine 

owned by the Union; using City equipment to 

clean the Union hall while on-duty; and 

asking permission for on-duty personnel to 

set up for a Union-sponsored retirement 

dinner. This conduct raises doubts about your 

ability to be an effective department head and 

to further the goals and policies of the City. 
HITTLE V. CITY OF STOCKTON 21

10) In the fall of 2010, you told Fire 

Department Internal Affairs Investigator 

Mark Lujan that firefighters were “upset” 

with him for displaying a “Yes on Measure 

H” sign on his lawn. This conduct raises 

doubts about your ability to be an effective 

department head and to further the goals and 

policies of the City.

The City provided Hittle the opportunity to meet with a 

City official and respond to the notice of intent to terminate. 

On September 28, 2011, Hittle, joined by his attorney, met 

with then-Deputy City Manager Michael Locke and 

Assistant City Attorney Michael Roush. During that 

meeting, Hittle’s attorney argued that the investigative report 

was not objective and that the meeting did not comport with 

due process. Hittle claims that the hearing was a sham, 

because he was not given an opportunity to call witnesses or 

obtain evidence and was locked out of his email system and 

files, and so had no opportunity to meaningfully defend 

himself. According to Locke, neither Hittle nor his attorney 

“provided any substantive reasons why [Hittle] should not 

be removed as Fire Chief.” Following the meeting, Locke 

sent a memo to Deis stating that, based on his review of the 

Largent Report and its findings, and because Hittle had not 

refuted any of the findings, Locke recommended that Hittle 

be removed as Fire Chief. On September 30, 2011, the City 

sent Hittle a formal notice of separation from City service, 

removing Hittle from his position as Fire Chief effective as 

of October 3, 2011. 

STANDARD OF REVIEW

Summary judgment is warranted when “there is no 

genuine dispute as to any material fact and the movant is 
22 HITTLE V. CITY OF STOCKTON

entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 250 (1986). We review grants of summary judgment 

de novo. Maner v. Dignity Health, 9 F.4th 1114, 1119 (9th 

Cir. 2021). Viewing the evidence in the light most favorable 

to the nonmoving party, we must determine whether there 

are any genuine issues of material fact, and whether the 

district court correctly applied the relevant substantive law. 

See Ass’n des Éleveurs de Canards et d’Oies du Québec v. 

Bonta, 33 F.4th 1107, 1113 (9th Cir. 2022). 

DISCUSSION

We analyze employment discrimination claims under 

Title VII and the California FEHA using the McDonnell 

Douglas Corp. v. Green burden-shifting test. See 411 U.S. 

792 (1973); Merrick v. Hilton Worldwide, Inc., 867 F.3d 

1139, 1145 (9th Cir. 2017) (“Because state and federal 

employment discrimination laws are similar, California 

courts apply the McDonnell Douglas burden-shifting 

framework to analyze disparate treatment claims under 

FEHA.”). Under this framework, a plaintiff alleging that an 

employer engaged in discriminatory conduct adversely 

affecting plaintiff’s employment must establish a prima 

facie case by demonstrating that: “(1) he is a member of a 

protected class; (2) he was qualified for his position; (3) he 

experienced an adverse employment action; and 

(4) similarly situated individuals outside his protected class 

were treated more favorably, or other circumstances 

surrounding the adverse employment action give rise to an 

inference of discrimination.” Fonseca v. Sysco Food Servs. 

of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004). A plaintiff 

may demonstrate an inference of discrimination “through 

comparison to similarly situated individuals, or any other 

circumstances surrounding the adverse employment action 
HITTLE V. CITY OF STOCKTON 23

[that] give rise to an inference of discrimination.” Hawn v. 

Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) 

(emphasis added) (internal quotation marks omitted). 

Similarly, California courts applying this test in the FEHA 

context have characterized the fourth element as a showing 

that “some other circumstance suggests discriminatory 

motive.” Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317, 355 

(2000). 

Should the plaintiff set forth a prima facie case, the 

burden shifts to the defendant to articulate “a legitimate, 

nondiscriminatory reason for the challenged actions.” Freyd 

v. Univ. of Or., 990 F.3d 1211, 1228 (9th Cir. 2021). If the 

defendant does so, the burden “returns to the plaintiff, who 

must show that the proffered nondiscriminatory reason is 

pretextual.” Id. A plaintiff meets his or her burden “either 

directly by persuading the court that a discriminatory reason 

more likely motivated the employer or indirectly by showing 

that the employer’s proffered explanation is unworthy of 

credence.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 

U.S. 248, 256 (1981).

Alternatively, a plaintiff can prevail merely by showing 

direct or circumstantial evidence of discrimination; he or she 

does not need to use the McDonell Douglas framework to 

establish a prima facie case. See McGinest v. GTE Serv. 

Corp., 360 F.3d 1103, 1122 (9th Cir. 2004) (holding that a 

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). 

However, “[w]hether a plaintiff establishes her prima facie 

claim of disparate treatment using direct or circumstantial 

evidence or the McDonnell Douglas factors, ‘once a prima 

face case of discrimination has been made, the burden shifts 
24 HITTLE V. CITY OF STOCKTON

to the employer to articulate some legitimate, 

nondiscriminatory reason for the challenged action.’” Opara 

v. Yellen, 57 F. 4th 709, 723 (9th Cir. 2023) (cleaned up)

(quoting E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th 

Cir. 2009)). Moreover, “regardless of the approach a 

plaintiff takes . . . —i.e., establishing the prima facie case via 

direct or circumstantial evidence or the McDonnell Douglas

factors—once an employer articulates some legitimate, 

nondiscriminatory reason for the challenged action, the 

employee must show that the articulated reason is 

pretextual.” Id.

Under Title VII, the plaintiff need only “demonstrate[] 

that race, color, religion, sex, or national origin was a 

motivating factor for any employment practice, even though 

other factors also motivated the [unlawful employment] 

practice.” 42 U.S.C. § 2000e-2(m) (emphasis added). Thus, 

Hittle must demonstrate that his religion was “a motivating 

factor” in Defendants’ decision to fire him with respect to 

his federal claims, see id., and that his religion was “a 

substantial motivating factor” for his firing with respect to 

his FEHA claims, Harris v. City of Santa Monica, 56 Cal. 

4th 203, 232 (2013).

1

On summary judgment, direct evidence of 

discrimination is that which, “if believed, proves the fact [of 

discriminatory animus] without inference or presumption.” 

Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 

2005).1 We have concluded that derogatory comments made 

1 In a disparate treatment claim under Title VII, a plaintiff offering direct 

evidence of ‘discriminatory animus’ must show that “the defendant had 
HITTLE V. CITY OF STOCKTON 25

by a decisionmaker are “direct evidence 

of . . . discriminatory animus” and “can create an inference 

of discriminatory motive.” Cordova v. State Farm Ins. Cos., 

124 F.3d 1145, 1149 (9th Cir. 1997). Chief among Hittle’s 

examples of direct evidence of discriminatory animus is 

Montes’s reference to Hittle being part of a “Christian 

coalition,” and Montes’s and Deis’s statements that Hittle 

was part of a “church clique” in the Fire Department. 

Montes responds to this characterization by noting that a 

high-ranking Fire Department manager had complained to 

her that there was a “Christian coalition” within the Fire 

Department, and that Hittle improperly favored members of 

that so-called coalition. Hittle acknowledged that the term 

“Christian coalition” came from the anonymous letters sent 

to the City criticizing Hittle’s management of the Fire 

Department, and not from Montes herself. 

Montes’s comments—whether taken in the context of 

one conversation with Hittle or during Hittle’s tenure as Fire 

Chief as a whole—do not constitute discriminatory animus. 

As previously observed, Hittle and Montes are in apparent 

agreement that Montes did not initiate the “Christian 

coalition” term herself, and that it originated from other 

members of the Fire Department who expressed unhappiness 

over Hittle allegedly engaging in favoritism. Cf. Vasquez v. 

County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003), 

a discriminatory intent or motive,” Watson v. Fort Worth Bank & Tr., 

487 U.S. 977, 986 (1988), to “treat[] some people less favorably than 

others because of their [protected characteristic],” Int’l Bhd. of 

Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). See also 

Bostock v. Clayton Cty., 140 S. Ct. 1731, 1740 (2020) (“[A]n employer 

who intentionally treats a person worse because of [a protected 

characteristic] . . . discriminates against that person in violation of Title 

VII.”).
26 HITTLE V. CITY OF STOCKTON

as amended (Jan. 2, 2004) (finding no direct evidence of 

animus where discriminatory remarks were attributed to a 

non-decisionmaker employee). Montes’s repetition of other 

persons’ use of pejorative terms does not provide evidence 

of Montes’s own animus, but rather shows concerns about 

other persons’ perceptions. See id.; cf. Godwin v. Hunt 

Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998), as 

amended (Aug. 11, 1998) (discussing that there is no direct 

evidence of animus if a remark would require an inference 

or presumption in an employee’s favor). And although 

Hittle suggests that Montes engaged in discrimination by 

informing him that the City was not “permitted to further 

religious activities” or “favor one religion over another,” 

these observations do not constitute direct evidence of 

discrimination. Rather, they reflect Montes’s legitimate 

concern that the City could violate constitutional 

prohibitions and face liability if it is seen to engage in 

favoritism with certain employees because they happen to be 

members of a particular religion. See Noyes v. Kelly Servs., 

488 F.3d 1163, 1172 (9th Cir. 2007) (concluding that a fact 

finder could reasonably determine that an employer engaged 

in discrimination by promoting employees because they 

were members of a certain religion); cf. Trump v. Hawaii, 

138 S. Ct. 2392, 2417 (2018) (“[T]he clearest command of 

the Establishment Clause is that one religious denomination 

cannot be officially preferred over another.” (quoting Larson 

v. Valente, 456 U.S. 228, 244 (1982)) (internal quotation 

marks omitted)). In short, because Montes and Deis did not 

use derogatory terms to express their own views, or focus on 

the religious aspect of Hittle’s misconduct to express their 

own animus, but rather referenced other legitimate 

constitutional and business concerns, their terminology does 

not give rise to a genuine issue of discriminatory animus. 
HITTLE V. CITY OF STOCKTON 27

See Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085–86 

(5th Cir. 1994) (per curiam) (indicating that where remarks 

had an innocent explanation, they were not evidence of 

gender discrimination). 

Hittle also claims that the Removal Notice issued by the 

City demonstrates direct evidence of discrimination because 

of its repeated references to Hittle’s attendance at a 

“religious event” (i.e., the Summit) and his approval of other 

Fire Department employees to attend. But this does not 

suggest discrimination, because the undisputed record shows 

that the Removal Notice relied on the findings in the Largent 

Report, which concluded that Hittle engaged in misconduct 

by attending a two-day event that did not benefit the City 

because it was not the sort of leadership conference aimed at 

public sector leadership, all while on paid City time, and 

approving three others to do likewise. In other words, the 

references to Hittle’s misconduct by attending the Summit

are due to a legitimate non-discriminatory reason—lack of 

benefit to the City—rather than to religious animus. It is 

undisputed that the Summit, even if a “pop-up business 

school,” did not constitute the type of upper management 

public sector leadership training that Montes directed Hittle 

to seek out, as it did not provide any focus on the 

management of public agencies. Montes and Deis could 

conclude (whether correctly or incorrectly) that the skills 

that the Summit sought to impart were not of any value or 

relevance to the three other firefighters whom Hittle invited 

to attend the event with him, all of whom also participated 

while on City time. Such a view is supported by the 

registration materials for the Summit, stating that the 

purpose of the leadership summit was to benefit the local 

church. An employer’s conclusion that an activity does not 

benefit the employer is not discriminatory even if the activity 
28 HITTLE V. CITY OF STOCKTON

has some relationship to a protected characteristic, such as 

religion or race. See Davis, 14 F.3d at 1085–86; see also 

Jiminez v. Mary Washington Coll., 57 F.3d 369, 383 (4th Cir. 

1995) (“The crucial issue in a Title VII action is an 

unlawfully discriminatory motive for a defendant’s conduct, 

not the wisdom or folly of its business judgment.”). “We 

cannot infer [religious] discrimination based on factual 

allegations that are ‘just as much in line with’ the nondiscriminatory explanation we have identified.” Frith v. 

Whole Foods Mkt., Inc., 38 F.4th 263, 276 (1st Cir. 2022) 

(citation omitted). Where there are “obvious alternative 

explanations for the purportedly unlawful conduct and the 

purposeful invidious discrimination plaintiff asks us to infer, 

discrimination is not a plausible conclusion.” Id. (cleaned 

up) (citation and internal quotations omitted). 

Because the employer could discipline Hittle for 

attending an event of no benefit to the City (the “obvious 

alternative explanation” for identifying the Summit as 

problematic), the employer’s discipline of two of the other 

Fire Department employees who attended the Summit with 

Hittle—both of whom were also Christian—by “forfeit[ing] 

two days of vacation to reimburse the City for the time spent 

attending the leadership conference,” is also not 

discriminatory on the basis of religion.2 More important, 

Hittle did not point to similarly situated people who attended 

events of no benefit to the City who were not disciplined, 

and so did not establish that part of his prima facie case. 

Finally, Hittle contends that Deis’s declaration in 

support of Defendants’ motion for summary judgment 

contains statements that are proof of Deis’s animus towards 

2 Paul Willette, the third member of the Fire Department to attend the 

Summit with Hittle, retired prior to the issuance of the Largent Report. 
HITTLE V. CITY OF STOCKTON 29

Hittle’s religion. Deis describes Hittle’s attendance at the 

Summit as exercising “poor judgment,” and that Hittle 

engaged in an “inappropriate activity” that was simply “for 

[Hittle’s] own personal interests.” But, as discussed above, 

Deis, like Montes, had legitimate, non-discriminatory 

reasons to be critical of Hittle inappropriately using City 

resources to attend an event for his personal benefit, and 

inviting other City personnel to do the same.3 

Nothing in our case law compels a different result. Hittle 

cites to Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 

1027, 1039 (9th Cir. 2005), Chuang v. Univ. of Cal. Davis, 

Bd. of Trs., 225 F.3d 1115, 1128 (9th Cir. 2000), and 

Cordova, 124 F.3d at 1149, in arguing that, in this Circuit, 

“a single discriminatory comment is sufficient to preclude 

summary judgment for the employer.” The decisionmakers 

in those cases made “clearly sexist, racist, or similarly 

discriminatory statements or actions by the employer”

related to protected characteristics of the employee. 

Coghlan, 413 F.3d at 1095. In Dominguez-Curry, plaintiff 

was told by a decisionmaker that “women have no business 

in construction,” and that “women should only be in 

subservient positions,” 424 F.3d at 1031; in Chuang, a 

decisionmaker remarked at a meeting that “‘two Chinks’ in 

the department were more than enough,” 225 F.3d at 1121; 

and in Cordova, the decisionmaker referred to a non-plaintiff 

employee as a “dumb Mexican.” 124 F.3d at 1147. None of 

3 Nor does Hittle provide evidence of discrimination—direct or 

otherwise—by describing a subjective and self-serving “long pause” and 

Deis’s “blank stare” during their first meeting after Hittle mentioned to 

Deis that he was a Christian. See, e.g., Clark Cnty. Sch. Dist. v. Breeden, 

532 U.S. 268, 271 (2001) (per curiam) (“[I]solated incidents (unless 

extremely serious) will not amount to discriminat[ion].” (citation 

omitted)). 
30 HITTLE V. CITY OF STOCKTON

these cases are comparable to this case, where the 

decisionmaker was making what could only be described as 

reasonable inquiries based on allegations of misconduct that 

she had concededly received from others in language 

comparable to what they used. We are not prepared to hold 

that such an inquiry constitutes evidence of direct

discrimination specifically or discrimination generally. 

Even if the quoted remarks are perceived as pejorative

by Hittle, our precedent does not dictate a contrary result. 

The statements by Montes and Deis are more akin to “stray 

remarks that have been held insufficient to establish 

discrimination.” Cordova, 124 F.3d at 1149. And this 

evidence falls within the ambit of circumstantial evidence

that requires an additional logical leap that is not supported 

by the record here. See Coghlan, 413 F.3d at 1095-96 

(discussing the difference between direct and circumstantial 

evidence, with circumstantial evidence requiring “specific 

and substantial” evidence to defeat summary judgment).

Therefore, discriminatory remarks made by a decisionmaker 

must be “clearly sexist, racist, or similarly discriminatory”

to create an inference of discriminatory motive. Here, the 

decisionmaker was merely conducting an inquiry based on 

complaints by third parties and the “obvious alternative 

explanation,” Frith, 38 F.4th at 276, for using those 

pejorative terms was that the decisionmaker was quoting the 

third parties. 

Finally, because neither Montes nor Deis made any 

remarks demonstrating their own discriminatory animus

toward religion—i.e., an intent to treat Hittle worse because 

he is Christian—but focused on the Summit’s lack of benefit 

to the City and other evidence of Hittle’s misconduct, Hittle 

failed to demonstrate that discriminatory animus toward

religion was even a motivating factor in his termination.
HITTLE V. CITY OF STOCKTON 31

2

On summary judgment, circumstantial evidence of 

discrimination “must be ‘specific’ and ‘substantial.’” 

France v. Johnson, 795 F.3d 1170, 1175 (9th Cir. 2015) 

(citation omitted), as amended on reh’g (Oct. 14, 2015). 

Hittle merely offers conclusory and unsupported examples 

of circumstantial evidence of religious animus by 

Defendants. 

Hittle alleges that on the day he received the notice of 

investigation from the City, he met with Deis, who angrily 

threatened Hittle to accept a demotion or face a long, 

expensive legal battle in which Hittle’s reputation would 

suffer irreparable harm. Viewing Hittle’s account of this 

meeting in the light most favorable to him still does not 

suggest any reasonable inference of religious animus, 

because there is no evidence in the record that Hittle’s 

religion was discussed during this meeting. 

Nor does the timing of Hittle being placed on 

administrative leave raise a showing of religious animus. As 

noted above, Hittle was placed on leave on March 30, 2011, 

shortly after the City retained Largent to conduct the 

investigation. Hittle claims that this decision was a result of 

an article published in a local newspaper on March 25, 2011, 

stating that Hittle had attended the Summit and noting its 

religious nature. But at the time Hittle was placed on leave, 

he had already been on notice for almost five months that he 

was under investigation for actions relating to attending the 

Summit and other misconduct. During this time, the record 

is replete with evidence that, despite knowledge of the City’s 

impending investigation, Hittle continued to engage in 

conduct that was of serious concern to the City, including 

defending Union President Macedo’s leak of confidential 
32 HITTLE V. CITY OF STOCKTON

HIPAA data, refusing to discipline Duaime for improper 

overtime practices, and refusing to prepare a layoff plan or 

recommend staffing cuts for the Fire Department during the 

City’s fiscal crisis, in spite of directives from Deis and 

Montes to do so—the latter two issues both memorialized in 

memoranda prepared by Hittle and sent to Montes on March 

14, and 16, respectively. In short, Hittle fails to raise specific 

or substantial facts regarding the timing of his being placed 

on administrative leave that reasonably link that event to the 

article noting Hittle’s attendance at the Summit, let alone 

evidence of religious discrimination by Defendants. 

Hittle also contends that certain findings in the Largent 

Report present evidence of pretext because the investigation 

deemed as “not sustained” certain instances of Hittle’s 

misconduct alleged by the City. But the fact that the Largent 

Report sustained the findings relating to misconduct in 

attending the Summit but did not sustain the City’s 

allegations as to a few of the investigation’s numerous issues 

does not show that the other allegations were pretexts and 

the real reason was discriminatory animus toward religion. 

Moreover, the Largent Report itself explains that issues 

deemed “not sustained” indicates that the “investigation 

disclose[d] that there was insufficient evidence to sustain the 

complaint or fully exonerate the employee” (emphasis 

added), as opposed to concluding that the issue was 

“unfounded” (meaning that the “investigation disclose[d] 

that the alleged act(s) did not occur or did not involve 

department personnel”), or “exonerat[ing]” Hittle on the 

issue (meaning that the “investigation disclose[d] that the 

alleged act occurred, but that the act was justified, lawful, 

and/or proper”). More significantly, Largent Report 

sustained what it characterized as the “most serious acts of 

misconduct” committed by Hittle, namely Hittle’s 
HITTLE V. CITY OF STOCKTON 33

inappropriate use of City time and a City vehicle to attend 

the Summit (which it characterized as a religious event) and 

Hittle’s failure to disclose his personal relationships and 

corresponding financial interests with respect to George 

Liepart and Union President Macedo. 

Simply put, the summary judgment record does not 

contain evidence to raise genuine issues of material fact 

sufficient for Hittle to meet his burden to demonstrate that 

Defendants’ legitimate non-discriminatory reasons for firing 

him were mere pretext for religious discrimination. Even 

though an aspect of Largent’s Report and the notice 

terminating Hittle was the religious nature of the leadership 

event, a nexus to a protected characteristic is not enough to 

preclude summary judgment for the employer. There is no 

genuine issue of material fact that Montes and Deis were 

motivated by discriminatory animus toward religion, as 

opposed to concern about the perception of others. And the 

facts that Hittle identifies as circumstantial evidence of 

discriminatory pretext are neither specific nor substantial 

enough to support a finding of unlawful employment 

discrimination. 

3

As Defendants observe, in addition to Hittle’s improper 

attendance at the Summit as one justification for removing 

him from City service, the City “articulated an 

overwhelming number of [other] non-discriminatory reasons 

for terminating Hittle’s employment, which were 

independently verified by an outside investigator.” 

Hittle’s post hoc effort to cast the findings of misconduct 

in the Largent Report as mere pretext for discriminatory 

termination is unsupported by the record. For example, 

Hittle claims that he had discussed his co-ownership of the 
34 HITTLE V. CITY OF STOCKTON

vacation cabin with a City attorney, who advised him that he 

did not need to disclose it to the City. But the record is clear 

that Hittle did not inform Largent about this conversation 

during her investigation, and in his interview with Largent, 

nor did he do so when he and his attorney were given the 

opportunity at his pre-termination meeting on September 28, 

2011. Hittle stated that he did not disclose to the City that 

he was a co-owner of the cabin, together with three other Fire 

Department officials, because he did not see a conflict of 

interest. 

Nor does Hittle persuasively argue that the City’s 

identification of his improper endorsement of Liepart’s 

consulting business was pretextual. Hittle claims that the 

City did not have a specific policy prohibiting such an 

endorsement, but Hittle told Largent in an interview that he 

understood it was City practice for its officials to not endorse 

private businesses. And, as Defendants observe in their 

brief, an employer does not need to identify a specific policy 

violation to fire an at-will employee. See Guz, 24 Cal. 4th at 

351–53. 

Hittle is no more successful in providing summary 

criticism of the allegations that he did not cooperate with the 

City during its financial crisis, promoted union interests at 

the expense of City welfare, and failed to discipline 

firefighters for misconduct. And, even viewing these facts 

in the light most favorable to Hittle, it is not sufficient for a 

plaintiff on summary judgment to merely “show the 

employer’s [termination] decision was wrong, mistaken, or 

unwise.” Dep’t of Fair Emp. & Hous. v. Lucent Techs., Inc., 

642 F.3d 728, 746 (9th Cir. 2011) (quoting Morgan v. 

Regents of Univ. of Cal., 88 Cal. App. 4th 52, 75 (2000)).
HITTLE V. CITY OF STOCKTON 35

Similarly, Hittle’s challenging various findings in the 

Largent Report as “unfounded” (or downplaying their 

seriousness) is insufficient to raise a triable issue of fact as 

to pretext. In this respect, Hittle is simply offering his own 

subjective viewpoint as to his ability to effectively manage 

the Fire Department, but “an employee’s subjective personal 

judgments of [his] competence alone do not raise a genuine 

issue of material fact.” Bradley v. Harcourt, Brace & Co., 

104 F.3d 267, 270 (9th Cir. 1996); accord Buhl v. Abbott 

Labs., 817 F. App’x 408, 410–11 (9th Cir. 2020) 

(memorandum disposition) (noting that “technical 

disagreements” with a manager and plaintiff’s “own 

subjective belief that [his employer’s] concerns about his 

performance were overblown are insufficient to raise a

genuine issue of fact”). 

4

Because Hittle has not met his burden to overcome 

Defendants’ motion for summary judgment on his 

affirmative discrimination claim, Hittle’s claim for the 

City’s failure to prevent discrimination in violation of Cal. 

Gov’t Code § 12940(k) likewise fails. There is no stated 

claim for failure to prevent discrimination if no 

discrimination occurred. See Trujillo v. N. Cty. Transit Dist., 

63 Cal. App. 4th 280, 288–89 (1998) (holding that the 

statutory language of § 12940 does not “support[] recovery 

on . . . a private right of action where there has been a 

specific factual finding that [the alleged] discrimination or 

harassment actually occurred at the plaintiffs’s workplace”). 

CONCLUSION

To summarize, we hold that, based on the record before 

us, the district court’s granting of summary judgment in 

Defendants’ favor was appropriate where Defendants’ 
36 HITTLE V. CITY OF STOCKTON

legitimate, non-discriminatory reasons for firing Hittle were, 

in sum, sufficient to rebut Hittle’s evidence of 

discrimination, and Hittle has failed to persuasively argue 

that these non-discriminatory reasons were pretextual. 

When discriminatory remarks are merely quoting third 

parties and the real issue is public perception or other forms 

of misconduct (such as engaging in an activity that does not 

benefit the employer), there is no genuine issue of material 

fact that the employer was discriminatory. For the foregoing 

reasons, the judgment of the district court is AFFIRMED.

CALLAHAN, Circuit Judge, with whom Judge VANDYKE 

joins, dissenting from the denial of rehearing en banc: 

I join my dissenting colleagues’ concern that the panel’s 

opinion fails to follow the Supreme Court’s directive 

prohibiting discrimination based on religion. Accordingly, I 

join Judge Ikuta’s dissent and sections I, II, III, and IV (A) 

of Judge VanDyke’s dissent. 

In addition, I fear that the panel’s opinion will be read to 

foreclose claims of discrimination for all protected classes 

because our court continues to give lip service to the 

Supreme Court directive that we view evidence in the light 

most favorable to the nonmoving party. It is the province of 

the jury, and not judges, to decide disputed issues of 

fact. Tolan v. Cotton, 572 U.S. 650 at 651, 656 (2014). That 

did not happen here. Title VII actions will never be properly 

determined by juries if judges grant summary judgments by 

crediting employers’ allegedly “nondiscriminatory” 

termination reasons instead of viewing the facts in favor of 

the employees alleging discrimination. A plaintiff needs to 

only produce “very little” evidence of the employer’s 
HITTLE V. CITY OF STOCKTON 37

discriminatory intent to move past summary 

judgment. Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 

F.3d 1115, 1128 (9th Cir. 2000). Even if the panel’s 

approach to religious discrimination were correct—which it 

is not—the burden of production was met here, so this case 

should have proceeded to a jury. 

IKUTA, Circuit Judge, joined by CALLAHAN and R. 

NELSON, Circuit Judges, dissenting from denial of 

rehearing en banc:

In this case, we affirmed the district court’s decision 

granting summary judgment to the City of Stockton because 

Ronald Hittle’s evidence of a discriminatory motive was 

insufficient to create a genuine issue of material fact. I 

joined the opinion, but also voted in favor of rehearing this 

case en banc because our conclusion is in tension with other 

Ninth Circuit Title VII cases which have held that “[a]s a 

general matter, the plaintiff in an employment discrimination 

action need produce very little evidence in order to 

overcome an employer’s motion for summary judgment.” 

Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 

1124 (9th Cir. 2000); see also Dominguez-Curry v. Nev. 

Transp. Dep’t, 424 F.3d 1027, 1039 (9th Cir. 2005) (“[W]e 

have repeatedly held that a single discriminatory comment 

by a plaintiff’s supervisor or decisionmaker is sufficient to 

preclude summary judgment for the employer.”). In my 

view, we should have taken this case en banc to correct this 

dilution of the summary judgment standard. Our failure to 

do so in this case, however, does not mean that employers 

are entitled to a more generous summary judgment standard 
38 HITTLE V. CITY OF STOCKTON

when they engage in discrimination on the basis of religion 

than when they engage in other sorts of discrimination.

VANDYKE, Circuit Judge, joined by CALLAHAN, Circuit 

Judge, as to Parts I, II, III, and IV(A), dissenting from the 

denial of rehearing en banc: 

Consider this story: A city receives an anonymous letter 

about its police chief—a lesbian and a multi-decade veteran 

of the force—accusing her of being a “lying, corrupt, radical 

gender ideologue and LGBTQ fanatic.” Some of her 

coworkers regularly employ such language to criticize her 

and other gay and lesbian officers in the precinct, calling 

them things like “the lesbian clique” and “the Rainbow 

Coalition.” 

After a change in city leadership, she is called into her 

supervisor’s office. One might hope that her supervisor 

scheduled the meeting to express concern about the 

inappropriate rhetoric. Instead, the supervisor admonishes 

the chief for being part of the “Rainbow Coalition.” The 

supervisor repeats that derogatory term (and others), telling 

the chief that “this wasn’t good” and she “shouldn’t be 

involved in that.” The chief’s perceived affiliation with the 

“Rainbow Coalition” is not the only source of friction 

between her and her supervisor, who suggests the chief 

should seek out some leadership training. 

The city is broke, so it can’t pay for any such training. 

But at this point, the chief benefits from a stroke of good 

luck. In just a few weeks, a prominent national leadership 

summit will be held within driving distance of the city. 

Though it does not cater exclusively to the LGBTQ 

community, the summit is hosted by a gay-rights advocacy 
HITTLE V. CITY OF STOCKTON 39

group, and its mission is “to transform gay and lesbian 

leaders for the sake of the LGBTQ community.” The chief 

attends the summit with other police officers from her 

precinct, all of whom are gay or lesbian. She drives the 

group there in her work vehicle. The group does not take 

time off from work, which is standard practice for such 

training, but each officer pays for their own ticket. 

After the summit, the police chief is again called into her 

supervisor’s office and presented with another anonymous 

letter. This one faults her for “using a city vehicle and 

attending an LGBTQ function on city time,” which the letter 

labels a “gross misuse of city finances.” Her supervisor 

again expresses deep concern with the chief, angrily 

accusing her of being part of this so-called “Rainbow 

Coalition.” The relationship deteriorates, and the city opens 

an investigation. The investigator’s report criticizes the 

LGBTQ-centric identity of the leadership training no less 

than ten times and labels the chief’s attendance as one of her 

“most serious acts of misconduct.” 

The chief is fired. During the litigation that follows, her 

supervisors devise numerous, contradictory explanations for 

the decision. The explanations include legally incorrect 

statements like “the city is legally prohibited from 

contributing to or participating in activities in furtherance of 

the LGBTQ community” and outright discriminatory 

statements like “the LGBTQ-centric mission of the summit 

means that it is of no value to the City.” 

Does this sound like the firing was based, at least in part, 

on the police chief’s sexual orientation? If so, read on. I’m 

willing to bet that you’ll likewise conclude that the City of 

Stockton has discriminated against its former fire chief, 

Ronald Hittle, because of his religion. 
40 HITTLE V. CITY OF STOCKTON

Like the hypothetical employer described above, the City 

of Stockton’s management frequently parroted derogatory 

and insulting terms coined by others to criticize Chief 

Hittle’s Christian faith. Although they now say they did so 

under the guise of “show[ing] concerns about other persons’ 

perceptions,” Hittle v. City of Stockton, 76 F.4th 877, 888 

(9th Cir. 2023), the Supreme Court has already rejected “a 

‘modified heckler’s veto, in which ... religious activity can 

be proscribed’ based on ‘perceptions’ or ‘discomfort.’” 

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 535 (2022) 

(quoting Good News Club v. Milford Cent. Sch., 533 U.S. 

98, 119 (2001)). 

The discriminatory conduct did not end there. Hittle’s 

direct supervisor, Laurie Montes, admitted on the record that 

in her view, Hittle’s attendance at the Global Leadership 

Summit—a national Christian leadership training 

program—provided no benefit to the City for the precise 

reason that the Summit provided leadership training from a 

Christian worldview. But the Supreme Court has long held 

that singling out religious viewpoints simply because they 

are religious is per se discriminatory and risks “fostering a 

pervasive bias or hostility to religion.” Rosenberger v. 

Rector & Visitors of Univ. of Va., 515 U.S. 819, 846 (1995). 

Finally, both Montes and the City Manager, Bob Deis, 

opined that Hittle was wrong to attend the Global Leadership 

Summit “because the City is not permitted to further 

religious activities.” This explanation “rest[s] on a mistaken 

view that it had a duty to ferret out and suppress religious 

observances.” Kennedy, 597 U.S. at 544. If such logic had 

any remaining purchase before Kennedy, it certainly 

shouldn’t have had any now. But notwithstanding the 

Supreme Court’s repeated attempts to rid our Establishment 
HITTLE V. CITY OF STOCKTON 41

Clause jurisprudence of the endorsement test, it apparently 

lives on in the Ninth Circuit.

Does anyone seriously doubt that if the plaintiff in this 

case were as described in the initial hypothetical above, this 

court would have failed to rehear this case en banc? Hittle 

produced ample evidence of the City’s intent to discriminate, 

and under this court’s caselaw, that is enough to at least 

survive the summary judgment stage. See Cordova v. State 

Farm Ins. Cos., 124 F.3d 1145, 1150 (9th Cir. 1997). It’s 

difficult to explain the difference in treatment here by 

anything other than a continued willingness to permit 

“purg[ing] from the public sphere anything an objective 

observer could reasonably infer endorses or partakes of the 

religious.” Kennedy, 597 U.S. at 535.

In its stubborn insistence on ruling against Chief Hittle, 

the panel has twisted the record into knots and badly 

misstated Title VII law. Its decision (1) abdicates its 

responsibility to read the record in the light most favorable 

to Hittle at the summary judgment stage; (2) allows 

employers to escape liability for repeating discriminatory 

remarks simply by hiding behind those who say them first; 

and (3) mangles Title VII’s “motivating factor” analysis. 

Perhaps most glaringly, its original opinion also incorrectly 

heightened the showing a plaintiff is required to make to 

demonstrate disparate treatment. In the panel’s view, Hittle 

bore the burden of showing that the City’s discriminatory 

conduct was “motivated by religious hostility,” Hittle, 76 

F.4th at 892, notwithstanding the Supreme Court’s 

admonition that such a plaintiff need only show he was 

“intentionally treat[ed] ... worse because of” a protected 

characteristic, Bostock v. Clayton County, 590 U.S. 655, 658 

(2020) (emphasis added).
42 HITTLE V. CITY OF STOCKTON

Recognizing at least this last mistake, the panel’s 

amended opinion retires its former use of the word 

“hostility,” replacing it with the more accurate (but less 

specific) “discriminatory animus.” Not only do those 

changes not fully fix the original opinion’s legal errors, but 

they also put the panel, which apparently remains as 

determined as ever to rule against Hittle, in a pickle. 

Notwithstanding its many other errors, the original opinion 

correctly acknowledged that the “gravamen” of the “notice 

terminating Hittle was the religious nature of the leadership 

event.” Hittle, 76 F.4th at 892. But if attendance at a 

religious event was the “gravamen” of the firing and Hittle 

need only show that he was “intentionally treat[ed] ... worse 

because of” religion, Bostock, 590 U.S. at 658, it would seem 

the panel would have no choice but to reverse its previous 

decision in favor of the City.

But it won’t. Instead of simply accepting the inevitable 

effect of its prior errors and ruling for Hittle, the panel 

attempts to quietly paper over them by revising its view of 

the underlying facts. Now we are told that the “religious 

nature of the leadership event” was merely an “aspect” of 

Hittle’s firing, not its “gravamen.” One might reasonably 

expect some kind of explanation for the panel’s convenient 

revelation on this dispositive issue of fact, but none is 

forthcoming. This willingness to improperly reinvent the 

facts of this case against Hittle to justify a past outcome is 

not a good look for our court—particularly when we have a 

well-established obligation to read the facts in Hittle’s favor

at this stage of the case.

In short, the panel’s modifications in the amended 

opinion merely attempt to hide meaningful changes to the 

logic of its decision behind a few unassuming and unhelpful 

changes in verbiage. The amended opinion twists the record 
HITTLE V. CITY OF STOCKTON 43

into even worse knots to reach an obviously wrong 

conclusion, and it continues to badly misstate both religious 

liberty and Title VII caselaw. These errors will not be 

without consequences, and ironically, many of those 

consequences will be felt by members of protected classes 

other than Christians like Chief Hittle—including women 

and racial, religious, and sexual minorities (unless our court 

sub silentio applies two different standards). We should 

have reheard this case en banc to bring it in line with the 

Supreme Court’s religion precedents, set the record straight, 

and undo the damage it has done to our Title VII caselaw. I 

respectfully dissent.

I.

In Title VII cases, “we begin, not surprisingly, with the 

text of the statute.” Costa v. Desert Palace, Inc., 299 F.3d 

838, 859 (9th Cir. 2002) (en banc), aff’d, 539 U.S. 90 (2003). 

Under Title VII, it is “an unlawful employment practice for 

an employer ... to discriminate against any 

individual ... because of such individual’s ... religion.” 42 

U.S.C. § 2000e-2(a)(1). “[A]n unlawful employment 

practice is established when ... religion ... was a motivating 

factor for any employment practice, even though other acts 

also motivated that practice.” Id. § 2000e-2(m) (emphasis 

added). Religion is defined broadly to include “all aspects 

of religious observance and practice, as well as belief.” 42 

U.S.C. § 2000e(j).

This court usually analyzes discrimination claims using 

the burden-shifting standard laid out in McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973). But “nothing compels 

the parties to invoke” McDonnell Douglas, which is just “a 

useful tool to assist plaintiffs at the summary judgment 

stage.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 
44 HITTLE V. CITY OF STOCKTON

(9th Cir. 2004) (citation and internal quotation marks 

omitted). “[A]lternatively,” a plaintiff “may simply produce 

direct or circumstantial evidence demonstrating that a 

discriminatory reason more likely than not motivated” the 

discrimination. Id. That is what Hittle did here. 

“[D]iscriminatory remarks ... create a strong inference of 

intentional discrimination,” Mustafa v. Clark Cnty. Sch. 

Dist., 157 F.3d 1169, 1180 (9th Cir. 1998), and Title VII 

plaintiffs are usually “required to produce ‘very little’ direct 

evidence of the employer’s discriminatory intent to move 

past summary judgment.” Chuang v. Univ. of Cal. Davis, 

Bd. of Trs., 225 F.3d 1115, 1128 (9th Cir. 2000) (citation 

omitted).

After a plaintiff has adduced such evidence, “the burden 

shifts to the defendant to articulate a “legitimate, 

nondiscriminatory reason for its employment decision.” 

Cordova, 124 F.3d at 1148. But when a plaintiff introduces 

“direct or circumstantial evidence of discriminatory intent, 

he will necessarily have raised a genuine issue of material 

fact with respect to the legitimacy or bona fides of the 

employer’s articulated reason for its employment decision.” 

Id. at 1150 (9th Cir. 1997) (citation omitted). Such a plaintiff 

will therefore have at least satisfied his summary judgment 

burden.

As explained below, this record includes ample direct 

and circumstantial evidence of Montes’s and Deis’s 

discriminatory intent, which the panel should have 

recognized as more than sufficient to meet Hittle’s burden at 

the summary judgment stage. It did not do so because, 

though it recognized its obligation to “view the evidence in 

the light most favorable to the non-moving party,” Hittle, 76 

F.4th at 880, it abandoned that duty wholesale. Its 

recounting of the facts focused at length on disputed facts 
HITTLE V. CITY OF STOCKTON 45

favoring the City, repeatedly credited the City’s version of 

events over Hittle’s, and ignored other undisputed facts 

favoring Hittle. To set the record straight—and to recount 

the significant evidence of discriminatory intent that Hittle’s 

supervisors displayed toward his religion—the following 

background states the facts in the light most favorable to 

Hittle, as our standard of review requires.

II.

A.

At the time he was fired, Hittle served as the Chief of the 

Stockton Fire Department. He reported directly to Montes, 

a deputy city manager, and finally to Deis, the City Manager. 

In May 2010, the City received an anonymous letter 

criticizing Hittle’s performance, and accusing him of being 

a “religious fanatic.” The City had received similar letters 

in the past, but a prior City Manager had a written policy 

against investigating them.

Montes and Deis took a different tack. During a meeting 

with Hittle, Montes told him that “she heard [he] was part of 

a group of folks, a Christian Coalition.” Montes did not 

bring up the “Christian Coalition” to sympathize with the 

discriminatory remarks Hittle was facing. Instead, she 

admonished him that he “shouldn’t be a part of anything like 

that as the fire chief” and “should refrain from doing any of 

those types of activities.” Though Montes did not say what 

types of “activities” were disallowed, Hittle understandably 

took her to mean that she did not want him “pray[ing] with” 

any of his firefighters or “speak[ing] to them about God.”

Though the provenance of the term “Christian Coalition” 

is unknown, it is at least clear that the moniker was 

pejorative. Another firefighter in the department explained 
46 HITTLE V. CITY OF STOCKTON

that he “began to hear firehouse chatter about the Bible 

Thumpers, or the Christian Coalition.” “Within the 

department,” he explained, “people are always trying to 

lump you into a group and make fun of you. The term was 

not intended to be complimentary.” Despite its negative 

connotation, Montes used the term in reference to Hittle 

several times. In his first meeting with Deis, Hittle deduced 

from Deis’s cold demeanor that Deis had prejudged him, 

having “already seen the anonymous letter and heard from 

Montes about [his] being part of a Christian Coalition.”

To be sure, the statements about the supposed “Christian 

Coalition” were not the only source of friction between 

Hittle and his superiors. As the panel opinion labors 

mightily to recount, city management also expressed 

concern about other aspects of Hittle’s job performance. See 

Hittle, 76 F.4th at 881–82. Though many of these concerns 

were eventually listed as bases for his termination alongside 

the allegations pertaining to religion, the religious 

allegations were listed first and featured prominently in the 

City’s reasoning and thus could accurately be described as 

“the gravamen” of the report that led to Hittle’s firing. 

Indeed, in its original opinion, the panel expressly adopted 

this characterization. Hittle, 76 F.4th at 892. But in the 

panel’s amended opinion it has inexplicably downgraded the 

religious allegations to a mere “aspect” of the report. The 

panel provides no explanation for its revision. But one thing 

is for sure: it was right the first time.

At least in part because of these perceived faults, Montes 

advised Hittle to obtain leadership training. The parties 

hotly contest the details of this request. While Montes 

contends that she “directed that [Hittle] find and attend a 

leadership training program,” suggesting a mandate, Hittle 

disagrees, asserting that Montes only “recommended” and 
HITTLE V. CITY OF STOCKTON 47

“encouraged” him to do so. Not only do the parties dispute 

the extent to which such training was mandated, they also 

bicker about the specific kind of training Montes asked 

Hittle to obtain. Montes testified that she “very specifically 

directed that he find a program intended for Fire Chiefs, or 

at least designed for the upper management of public 

entities.” But on this point, too, Hittle tells a different story. 

When specifically asked whether Montes “wanted [him] to 

attend fire leadership training,” Hittle responded only that 

she “wanted [him] to attend leadership training.” Then, 

when asked a follow-up question about whether “she wanted 

you to attend leadership training similar to what the police 

officers did,” Hittle again disagreed, saying, “Yeah. She 

was—no, it was more of a surprise that they didn’t provide 

or there was no mandate ... to have continuing education.” 

Notwithstanding its obligation to do the opposite at the 

summary judgment stage, the panel wrongly credited 

Montes’s testimony on these disputed issues over Hittle’s. 

Id. at 882.1

At the time Montes encouraged Hittle to attend a 

training, Stockton faced a severe budget crisis that would 

eventually lead to its bankruptcy. Because the budget was 

tight, Hittle found it difficult to secure a training option like 

the ones he had attended in the past. While Hittle was 

struggling to find affordable options, he learned that an 

annual faith-based leadership conference, the Global 

Leadership Summit, was being held in a nearby city.

There is no dispute that the Summit is religiously 

affiliated. It “exists to transform Christian leaders around 

1 Worse, it used its resolution of this factual dispute in the City’s favor 

to resolve a key legal issue in the case against Hittle. See id. at 889. 

More on that later.
48 HITTLE V. CITY OF STOCKTON

the world with an injection of vision, skill, development and 

inspiration for the sake of the local church.” It was held at a 

church and attended by many pastors, and it intentionally 

weaves both religious and secular content into its 

programming. The Summit’s speakers typically include 

pastors, famous business leaders, politicians, and authors.2

Hittle attended the Summit alongside three other Fire 

Department leaders. Each attendee paid their own way to 

the conference, and the only costs incurred by the City were 

the use of Hittle’s work vehicle and the regular salaries of 

the employees for their two days of attendance. None of the 

employees took leave to attend the conference, and each 

“still took all [their] emails and all [their] phone calls.” 

While there, the group noticed another fire chief in 

attendance and wearing his uniform. 

After the Summit, the City received a second anonymous 

letter complaining that Hittle “used a city vehicle and 

attended a religious function on city time,” which the letter 

characterized as “a gross misuse of city finances.” In 

response, Montes again invoked the specter of the “Christian 

Coalition,” telling Hittle that his perceived participation in it 

“wasn’t good, and that [he] should not be doing this.” Hittle 

described their conversation as “very heated”—“the angriest 

argument the two of us ever had.” Montes “raised her 

voice,” and “it was clear she was saying [the term ‘Christian 

2 In addition, the Global Leadership Summit has submitted an amicus 

brief supporting Hittle that elaborates on its Christian affiliation. In the 

brief, the Summit describes itself as “a faith-based organization,” and it 

considers its Christian character to be one of its great strengths. In its 

view, “the Summit is a valuable resource to leaders in all areas ... 

because, not despite ... [its] moral foundations.”
HITTLE V. CITY OF STOCKTON 49

Coalition’] in a pejorative way, making it clear this was 

wrong and distasteful to her.”

The City then opened a lengthy misconduct inquiry into 

Hittle that closely scrutinized his religious affiliations and 

his attendance at the Summit. During the investigation, Deis 

expressed his view that “[i]t is not acceptable” to “use public 

funds to attend religious events; even if under the guise of 

leadership development,” and Montes averred that the 

Summit’s purpose to “transform Christian leaders” did not 

“provide ‘a specific benefit’ to the City.”3 Both also used 

the derogatory term “Christian clique” to describe Hittle’s 

relationships with other Christian firefighters in the 

department.

Perhaps most damning to the City’s cause is the 

substance of the lengthy final report the investigator 

eventually published, forty-seven pages of which were 

devoted to the allegations pertaining to Hittle’s religion. 

Two of the four “most serious acts of misconduct” described 

in the report pertained explicitly to the religious nature of the 

Summit, and its conclusions expressly invoked religion no 

less than ten different times.

The report echoed Deis’s and Montes’s concerns that 

“[t]he City is legally prohibited from contributing to or 

participating in activities in furtherance of religion” and that 

3 These admissions directly contradict other aspects of Deis’s and 

Montes’s declarations, where they both assert that the fact that the 

Summit was a Christian conference was irrelevant to their analysis. 

They are impossible to square with the above-quoted remarks. Either 

the religious nature of the Summit factored into the analysis, or it didn’t. 

The City cannot have it both ways, and at the summary judgment stage, 

the panel should have credited those portions of the testimony that favor 

Hittle, not the City.
50 HITTLE V. CITY OF STOCKTON

Hittle’s attendance at the Summit was not for “the benefit of 

the City.” At one point, the report even went so far as to say 

that “[i]t is the concern of the City that the Global Leadership 

Summit was a religious based event.”4 After the report was 

published, the City notified Hittle of its intent to fire him. 

The notice incorporated the conclusions of the investigator’s 

report, and like the report, it expressly invoked Hittle’s 

religious affiliations and his attendance at the Summit. 

Hittle was fired soon thereafter.

B.

Having now reviewed this evidence, it should not be 

terribly difficult for the reader to see how the record could 

sustain a reasonable inference that the City fired Hittle at 

least in part because of his religion, as Title VII broadly 

defines that term. Montes repeatedly questioned Hittle 

regarding his religious affiliations and his attendance at a 

Christian event. On multiple occasions, she demanded that 

he damper his religious activity with fellow Christians in the 

workplace. Both Montes and Deis repeated pejorative terms 

that were clearly intended to be derogatory, and they did so 

in a manner suggesting they shared the discriminatory 

feelings of the anonymous agitators in the Fire Department 

who coined them.

When the City received letters containing even more 

inflammatory language, Montes again directed her ire at 

Hittle for being perceived as part of this “Christian 

Coalition.” In the lengthy misconduct investigation that 

followed, the investigator closely scrutinized Hittle’s faith. 

4 How much more clearly can one expect the City to state the nature of 

its concerns, if a statement that begins with, “It is the concern of the City 

that ...” is insufficient?
HITTLE V. CITY OF STOCKTON 51

As the panel previously recognized, but now chooses to 

ignore, the religious nature of the Summit was the 

“gravamen” of the investigator’s final report. Hittle, 76 

F.4th at 892. When compared to the “very little” evidence 

of discrimination a Title VII plaintiff must produce at this 

stage, Chuang, 225 F.3d at 1128, this evidence—much of 

which is admitted to by the City—more than suffices to 

create a fact dispute regarding the City’s motives for firing 

Hittle.

Several of our sister circuits have reached similar 

conclusions in similar cases. In Venters v. City of Delphi, 

for example, the Seventh Circuit explained that “remarks 

and other evidence that reflect a propensity by the 

decisionmaker to evaluate employees based on illegal 

criteria will suffice as direct evidence of discrimination even 

if the evidence stops short of a virtual admission of 

illegality.” 123 F.3d 956, 973 (7th Cir. 1997). Venters

included a few “obvious and compelling example[s],” 

including “remark[s] to the effect that ‘I won’t hire you 

because you’re a woman,’ or ‘I’m firing you because you’re 

not a Christian.’” Id. at 972–73. Though the Venters court 

ultimately ruled against the Title VII plaintiff, the remarks 

in this case—that Hittle was wrong to be part of a Christian 

Coalition and that a Christian leadership training was of no 

value to the City—are not meaningfully different from the 

“obvious and compelling example[s]” discussed in Venters.

The Eighth Circuit’s decision in Brown v. Polk County, 

Iowa, is even more directly on point. 61 F.3d 650 (8th Cir. 

1995). There, Brown, a former county employee “who 

identifie[d] himself as a born-again Christian,” sued his 

employer, alleging he was fired on account of his religious 

activities. Id. at 652. Before Brown’s firing, the county 

administrator reprimanded him for “participating in 
52 HITTLE V. CITY OF STOCKTON

activities that could be construed as the direct support of or 

the promotion of a religious organization or religious 

activities utilizing the resources of Polk County 

Government” and directed him to cease any activities that 

“could be perceived as to be supporting a religious activity 

or religious organization.” Id. at 652–53.

The district court concluded that Brown “had offered no 

direct evidence that he was fired on account of his religious 

activities,” but the Eighth Circuit reversed, concluding that 

the “reprimand, which was based on religious activities,” 

clearly demonstrated that religion “was ‘a factor’ in [the] 

decision to fire” him. Id. at 657. Here, as in Brown, there is 

ample evidence demonstrating that Hittle’s religious 

activities—including his association with other Christians in 

the Department and his attendance at the Summit—factored 

into his firing.

In my view, this record is so thoroughly stacked against 

the panel’s framing of this case as to speak with an almost 

unanimous voice against it. Indeed, there is a strong 

argument to be made that it is Hittle—not the City—who 

was entitled to summary judgment here. That the panel 

continues to ignore such overwhelming evidence in Hittle’s 

favor is a testament to the extent to which it has wholly 

abrogated its responsibility to view the facts in Hittle’s favor.

III.

Because Hittle introduced direct and circumstantial 

evidence demonstrating that the City intentionally 

discriminated against him because of his religion, the panel 

should have recognized that he had at least created a fact 

issue as to the City’s motives and stopped there. See 

Cordova, 124 F.3d at 1150. It did not do so. Instead, it 

proceeded forward with an examination of the City’s 
HITTLE V. CITY OF STOCKTON 53

proffered motives. In doing so, it not only wrongly invaded 

the province of the jury, but it also demonstrated a 

misunderstanding of the Supreme Court’s religion caselaw.

In defense of the firing, the City urged—and the panel 

credited—three “legitimate, nondiscriminatory reason[s]” 

for its behavior. Hittle, 76 F.4th at 890. But even assuming 

the panel should have considered the suggested motives (it 

shouldn’t have), none of them are “legitimate” and 

“nondiscriminatory,” and none of them rebut the evidence 

Hittle relies on to demonstrate the City’s discriminatory 

intent. Instead, each of the City’s excuses for firing Hittle 

further reinforces the conclusion that Hittle was fired 

because of his religious activity, and worse, several 

demonstrate a deep-set and abiding misunderstanding about 

its obligations to its religious employees.

A.

First, the City sought to excuse Montes’s and Deis’s use 

of the phrases “church clique” and “Christian Coalition” by 

reasoning that the insults neither originated with them and 

nor expressed anything more than concern about the 

perceptions of others. The panel credited both these 

explanations, see Hittle, 76 F.4th at 889, but neither satisfies 

the City’s burden of producing a “legitimate, 

nondiscriminatory reason for the challenged action[],” Freyd 

v. Univ. of Or., 990 F.3d 1211, 1228 (9th Cir. 2021).

While the derogatory terms might not have originated 

with Montes and Deis, that does not absolve them of their 

liability for repeating them. To support its conclusion to the 

contrary, the panel relied on Vasquez v. County of Los 

Angeles, 349 F.3d 634 (9th Cir. 2003). But nothing in 

Vasquez is inconsistent with holding the City liable here. In 

Vasquez, the plaintiff offered only the discriminatory 
54 HITTLE V. CITY OF STOCKTON

remarks of a coworker, not the decisionmaker, and could not 

“show a nexus between [the coworker’s] discriminatory 

remarks and [the decisionmaker’s] subsequent employment 

decision.” Id. at 640.

Vasquez thus stands for the uncontroversial proposition 

that remarks must be attributable to the decisionmaker to 

provide evidence of discriminatory intent. Id. That 

proposition is certainly correct as far as it goes. After all, 

though they are certainly unfortunate, discriminatory 

remarks that are not made by an employer and cannot be 

shown to have motivated the employer’s reasoning cannot 

satisfy a plaintiff’s standard of showing that a protected 

characteristic “was a motivating factor for any employment

practice.” 42 U.S.C. § 2000e-2(m).

True though it may be, that proposition’s application to 

this case is dubious for the simple reason that Vasquez is 

readily distinguishable. Unlike in Vasquez, Hittle’s 

supervisors actually said the discriminatory remarks. And 

not only did they repeat the discriminatory remarks made by 

others, but the manner in which they did so also suggests that 

they were sympathetic to the discriminatory sentiments of 

those who coined the terms in the first place.

To understand why that must be true, momentarily put 

yourself into the shoes of a hypothetical black female 

employee. Imagine that disgruntled employees in your 

workplace criticized you for being a “diversity hire.” If your 

supervisor scheduled a meeting to discuss those rumors, 

what would you expect him to say? Personally, I might 

expect a little sympathy, and maybe even a promise to 

implement some ameliorative measures designed to root out 

the hostility. What I certainly wouldn’t expect is for my 

supervisor to “express concern” that I was, in fact, a 
HITTLE V. CITY OF STOCKTON 55

“diversity hire.” The very act of expressing concern about 

such a thing suggests that your supervisor agrees that your 

status as a so-called “diversity hire” is the problem. Of all 

the things an employer with no intent to discriminate might 

do during such a meeting, that response must be near the 

bottom of the list. To put it mildly, that approach certainly 

wouldn’t assure me that my employer was absolutely 

committed to maintaining a workplace free of race-based 

discrimination.

The very same inference can be drawn from Montes’s 

interactions with Hittle. On multiple occasions, Montes 

repeated insults coined by antagonists in the Fire 

Department, and she did so directly to Hittle’s face. When 

she partook in the name calling, she made it clear that her 

concern was not for Hittle. She told him he “shouldn’t be a 

part of anything like that as the fire chief” and “should 

refrain from doing any of those types of activities.” This is 

not the reaction of a supervisor riding to the defense of an 

employee being subjected to discriminatory workplace 

name-calling. Quite the opposite. Ultimately, it is hard to 

view Montes’s behavior as anything other than an expression 

of her own disapproval that Hittle was acting too Christian 

at work. The same can be said of Deis’s use of the phrase 

“church clique.”

For the same reasons, the panel was also wrong to 

conclude that Montes and Deis were merely “show[ing] 

concerns about other persons’ perceptions.” They clearly 

had their own concerns and borrowed the derogatory 

language of others to voice them. But even assuming for a 

moment that Montes and Deis were only voicing the 

“perceptions” of others (and again, at this stage of the 

litigation, we cannot assume they were), those “perceptions” 
56 HITTLE V. CITY OF STOCKTON

do not provide a legitimate excuse under Title VII because 

they are themselves blatantly discriminatory.

Although the City argues to the contrary, the anonymous 

antagonists in the Fire Department were doing more than just 

“express[ing] unhappiness over Hittle allegedly engaging in 

favoritism.” Hittle, 76 F.4th at 888. The letters the City 

received referred to Hittle as a “religious fanatic” and to his 

attendance at the Summit as a “gross misuse of city 

finances.” These accusations must be examined against the 

backdrop of anti-Christian hostility in the Fire Department, 

where phrases like “Christian Coalition” and “Bible 

Thumpers” were commonly leveled against religious 

employees in a condescending fashion. These facts make it 

sufficiently clear that the “perceptions” that so concerned 

Montes and Deis were far from nondiscriminatory. For that 

reason, they cannot possibly be the subject of any legitimate 

concern that might excuse their behavior. Thus, even if it is 

true that Montes and Deis were merely “show[ing] concerns 

about other persons’ perceptions,” that does not inoculate the 

City from their discriminatory taint.

Though the Supreme Court has not yet squarely 

addressed this issue in the context of a Title VII intentional 

discrimination claim, it has elsewhere made clear that 

religious activity cannot be censored in service of the 

discriminatory and misplaced perceptions of others. In 

Kennedy, for example, the Court explained that “the 

Establishment Clause does not include anything like a 

‘modified heckler’s veto, in which ... religious activity can 

be proscribed’ based on ‘perceptions’ or ‘discomfort.’” 597 

U.S. at 534 (quoting Good News Club, 533 U.S. at 119). 

More recently, in Groff v. DeJoy, it explained that neither “a 

coworker’s dislike of ‘religious practice and expression in 

the workplace’” nor “animosity to a particular religion [or] 
HITTLE V. CITY OF STOCKTON 57

to religion in general” can excuse a public employer’s failure 

to accommodate an employee’s religious activity. 600 U.S. 

447, 472–73 (2023).

The Eighth Circuit encountered a similar explanation 

from a public employer in Brown. See 61 F.3d at 656–57. 

There, Brown’s employer sought to defend its decision to 

fire him by noting that Brown’s religious activities had 

become “a point of conversation” in the workplace and “that 

‘some people ... were concerned’ about the possible effect 

of [his] religious beliefs on his personnel decisions.” Id. 

The Eighth Circuit considered these explanations 

insufficient, however, because the employer had not 

demonstrated that the concerns expressed by Brown’s 

coworkers “were either reasonable or legitimate.” Id. at 657. 

So too here.

The panel’s reasoning is not just wrong, but it also has 

the potential to create pernicious jurisprudential 

consequences for all Title VII plaintiffs, not just religious 

ones. By downplaying Montes’s behavior as nothing more 

than expressing “concerns about other persons’ 

perceptions,” the panel has created a massive loophole to the 

general rule that “discriminatory remarks ... create a strong 

inference of intentional discrimination,” Mustafa, 157 F.3d 

at 1180. If all an employer must do to escape the inferential 

force of a discriminatory remark is merely later state that he 

repeated the remark out of concern for others’ perceptions, 

then the “strong inference” must not be that strong after all. 

The panel’s rule, which is willfully blind to the possibility 

that discriminatory employers might seek to hide behind 

other discriminatory employees, creates a de facto license 

for employers to repeat whatever insults an employee’s 

coworkers make—so long as they let the coworkers do the 

dirty work of devising them first. This cannot be the rule.
58 HITTLE V. CITY OF STOCKTON

Consider how such a rule might apply in light of recent 

world events. To do so, imagine a hypothetical workplace 

with many Jewish and Palestinian employees. The 

Palestinians decry their Jewish colleagues’ connections to a 

supposed “Zionist Conspiracy” in the office. Would this 

court permit an employer to “express concern” about the 

existence of the so-called “Zionist Conspiracy” so long as 

that term was first coined by a Palestinian coworker? Or to 

recall some earlier examples, would it consider others’

perceptions that an employee was a “diversity hire” or the 

member of a “Rainbow Coalition” to be legitimate bases for 

criticizing the employee’s status?

Of course not, and rightly so. In these hypotheticals, 

both the terms themselves and the fact that they are being 

raised as “concerns” about the employee in the first place are 

compelling evidence that some form of discrimination is 

afoot. The same is true here, and a rule that blesses Montes’s 

use of the phrase “Christian Coalition” immunizes an 

employer who repeats the phrases “Zionist Conspiracy,” 

“diversity hire,” “Rainbow Coalition,” or any number of 

similarly derogatory labels with equal force.

B.

Second, though the City never mentions the 

Establishment Clause by name, it sought to avoid an 

inference of discrimination by invoking vague notions of 

avoiding the endorsement of religion. Montes, for example, 

asserted that “[i]t was improper for Chief Hittle to attend a 

religious training event on City time using City property 

because the City is not permitted to further religious 

activities.” Deis expressed similar concerns. For its part, the 

panel accepted these “concern[s] that the City could violate 
HITTLE V. CITY OF STOCKTON 59

constitutional prohibitions” in this way as “legitimate.” 

Hittle, 76 F.4th at 889.

But if there was any room for such thinking before the 

Supreme Court’s recent decision in Kennedy, there certainly 

isn’t now. Because this court is very familiar with the facts 

of Kennedy, I’ll stick to the basics. In Kennedy, a high 

school football coach who prayed on the field after his 

team’s football games was disciplined by his employer, 

Bremerton School District. 597 U.S. at 514. Like the City 

of Stockton, Bremerton acted on its “mistaken view that it 

had a duty to ferret out and suppress religious observances” 

by public employees, id. at 543, forbidding Kennedy’s 

on-field prayers to avoid violating the Establishment Clause 

by appearing to endorse Kennedy’s faith, id. at 532.

The Supreme Court was unconvinced by Bremerton’s 

Establishment Clause logic. It unequivocally rejected its 

endorsement concerns, finally putting the “abstract,” 

“ahistorical” “Lemon [v. Kurtzman] and its endorsement test 

offshoot” to rest. Id. at 534. As the Kennedy Court 

explained:

An Establishment Clause violation does not 

automatically follow whenever a public 

school or other government entity “fail[s] to 

censor” private religious speech. Nor does 

the Clause “compel the government to purge 

from the public sphere” anything an objective 

observer could reasonably infer endorses or 

“partakes of the religious.”

Id. at 534–35 (citations omitted).
60 HITTLE V. CITY OF STOCKTON

What was true in Kennedy is true here. Montes’s 

conclusion that Hittle must not associate with other 

Christians in the Fire Department or attend a Christian 

conference because of concerns that the City “is not 

permitted to further religious activities” reflects nothing 

more than fear of a “phantom constitutional violation[].” Id. 

at 543. It supposes a standard of secular scrupulosity that 

the Establishment Clause does not and has never required of 

public employers. See Tucker v. State of Cal. Dep’t of Educ., 

97 F.3d 1204, 1213 (9th Cir. 1996) (“There is simply no 

legitimate basis for ... an order prohibiting all advocacy of 

religion in the workplace on the ground that it is necessary 

to avoid the appearance that the state is favoring religion.”); 

see also Brown, 61 F.3d at 657 (rejecting employer’s claim 

that the “[E]stablishment [C]lause allows them to prohibit 

religious expression altogether in their workplaces” as “too 

extravagant to maintain”). Because the City has no 

legitimate interest in suppressing all religious activity in its 

workplaces, Montes’s concerns cannot possibly provide a 

legitimate basis for Hittle’s firing.

Deis’s concerns about the use of public funds are 

similarly illegitimate. The Supreme Court has repeatedly 

rejected the notion that establishment concerns allow 

governments to “discriminate[] against otherwise eligible 

recipients by disqualifying them from a public benefit solely 

because of their religious character.” Trinity Lutheran 

Church of Columbia, Inc. v. Comer, 582 U.S. 449, 462 

(2017); see also Rosenberger, 515 U.S. at 842–43. In Trinity 

Lutheran, Missouri sought to “categorically disqualify[] 

churches and other religious organizations from receiving 

grants under its playground resurfacing program” given its 

“antiestablishment objection” to supporting religion. 582 

U.S. at 454, 463. Even though the case concerned only the 
HITTLE V. CITY OF STOCKTON 61

denial of grant funding, not a prohibition of Trinity 

Lutheran’s rights to worship, the Court nevertheless 

concluded that Missouri’s reasoning, which singled out the 

church “solely because it is a church,” could not justify its 

discriminatory behavior. Id. at 463.

Deis’s conclusion that Hittle was wrong to use public 

funds to attend the Summit was undoubtedly predicated on 

his conclusion that the Summit was a religious-affiliated 

organization offering leadership training from a religious 

perspective. It thus rests on the same wrong logic rejected 

in Trinity Lutheran. Like Trinity Lutheran, Hittle was 

categorically excluded from a benefit—the privilege of 

choosing leadership training uniquely suited to his personal 

and professional circumstances—solely based on religion. 

He was later denied his job for his religious activity. Such 

discrimination infringed on his rights under Title VII with as 

much force as Missouri violated Trinity Lutheran’s free 

exercise rights.

As a department head, Hittle had the authority to approve 

his own attendance at a training or conference. By Montes’s 

own admission, attending conferences during work hours 

would not have been unusual for employees like Hittle, as 

“the City was not concerned that he was away from the 

Department for the two days.” From that we can conclude 

that the benefit—selecting leadership training—was widely 

available to people in Hittle’s position. What the City was

concerned about, however, was the conference’s religious 

perspective. Had the Summit been offered from a secular 

viewpoint, the City would have had no problem with Hittle’s 

attendance. But instead the Summit was a Christian event, 

and as far as the City was concerned, therein lies the rub. 

That reasoning is inherently discriminatory, and the 

Establishment Clause does not require it. The court should 
62 HITTLE V. CITY OF STOCKTON

have taken this opportunity to hold en banc that Title VII 

affirmatively prohibits it.

Although the Supreme Court’s religion cases have 

decisively rejected Lemon’s endorsement test and swung in 

favor of religious accommodation and toleration, the panel 

in Hittle nevertheless considered the City’s endorsement 

concerns “legitimate” and “non-discriminatory.” They are 

neither. Such concerns are only “legitimate” if the City has 

a discernible interest in avoiding an incorrect perception of 

the endorsement of religion. As Kennedy, Groff, and Trinity 

Lutheran make clear, it does not.

C.

The City’s third and final purported “nondiscriminatory” 

basis for invoking Hittle’s religion as a basis for his firing 

proceeds from the same basic misunderstanding as its 

second. The City argued that it viewed Hittle’s attendance 

at the Summit as problematic not because it was religious 

but because of its “lack of benefit to the City.” Hittle, 76 

F.4th at 889. While that reason sounds neutral and 

nondiscriminatory enough, it again misconstrues the record 

in favor of the City and conceals the fact that the very reason 

the City considered the Summit of no benefit to it—because 

it provided leadership training from a religious 

perspective—was fundamentally discriminatory.

To begin with, the City can only plausibly advance this 

explanation by again playing games with the record. It 

attempts to reframe the basis of its conclusion that the 

conference was of no value away from the Summit’s 

religious nature and toward its assertions that (1) the Summit 

was not specific to Fire Chiefs or “designed for the upper 

management of public entities” and (2) Hittle could not 

articulate a specific benefit to the City. Montes, for example, 
HITTLE V. CITY OF STOCKTON 63

asserted in her declaration that “[t]he fact that the Summit 

was religious based, of itself, was not an issue at all.” Deis 

made similar statements, contending that “[i]t was irrelevant 

to [his] analysis that this event was religious themed.”

The panel accepted the City’s reframing of the issue, id., 

but it was wrong to do so for at least three reasons. First, 

and most importantly, Montes’s and Deis’s assertions are 

contradicted by their other statements, which tie the asserted 

lack of benefit to the Summit’s religious mission. Courts are 

not at liberty to accept self-contradicted testimony favoring 

a movant at the summary judgment stage.

Second, Hittle has also provided evidence contradicting 

the City’s framing of the events. As explained above, Hittle 

contests the substance of Montes’s instructions. He also 

provides an account of the lessons he learned at the Summit. 

Even though the Summit was not designed only for public 

sector leadership, these facts plausibly demonstrate how the 

training might appreciably improve Hittle’s leadership skills 

generally, thereby providing the City a benefit. The panel 

was again wrong to credit the City’s version of the facts at 

the summary judgment stage.

But finally, even if Montes’s and Deis’s testimony 

hadn’t been contradicted by Hittle or their own declarations, 

the Supreme Court’s decision in Bostock v. Clayton County

instructs courts not to accept an employer’s characterizations 

of its own motivations at face value and to instead scrutinize 

whether the employer’s actions were discriminatory. See 

590 U.S. at 668 (“[N]othing in Title VII turns on the 

employer’s labels or any further intentions (or motivations) 

for its conduct beyond [the] discrimination.”).

Consider again that portion of the City’s reasoning the 

panel should have credited at this stage. Montes explained 
64 HITTLE V. CITY OF STOCKTON

that the Summit was “inconsistent with ... policies that 

require that the training provide ‘a specific benefit’ to the 

City” because of its “stated purpose” “to ‘transform 

Christian leaders ... for the sake of the local church.” The 

import of such reasoning is unavoidable. It clearly and 

unmistakably ties the lack of benefit to the religious 

character of the training. As far as the City of Stockton is 

concerned, a training espousing Christian leadership 

principles has no “specific benefit” to offer its employees.

There’s just no way around it: such logic is per se 

discriminatory. To borrow from the introductory 

hypothetical, if Montes had fired a fire chief for attending an 

LGTBQ-focused leadership training on the basis that 

LGBTQ events never offer any “specific benefit” to the City, 

that firing would clearly rest on discriminatory criterion. 

The same could be said if the leadership training had focused 

on employees of a specific race, sex, or nationality. And 

because Title VII plainly includes religion alongside these 

protected classes, the same must be true here.

As the Supreme Court has repeatedly held, government 

entities cannot hold out religious individuals or 

organizations for unfavorable treatment solely on account of 

their religious viewpoints. Groff, 600 U.S. at 472; Kennedy, 

597 U.S. at 543–44; Trinity Lutheran, 582 U.S. at 462; Good 

News Club, 533 U.S. at 120; Capitol Square Review & 

Advisory Bd. v. Pinette, 515 U.S. 753, 769 (1995); 

Rosenberger, 515 U.S. at 845; Church of Lukumi Babalu 

Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); Lamb’s 

Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 

384, 393 (1993); Widmar v. Vincent, 454 U.S. 263, 277 

(1981). Just like its first two reasons, the City’s third reason 

is far from “legitimate” or “nondiscriminatory.”
HITTLE V. CITY OF STOCKTON 65

* * *

Though the excuses the City offers for the firing are all 

clothed in neutral language, they ultimately do nothing to 

rebut the conclusion that the City intentionally discriminated 

against Hittle because of his religion. Both the City’s 

behavior and the panel opinion rest on the oft-repeated but 

thoroughly debunked idea that there is something inherently 

suspect about public employees integrating their religion 

into their work. 

For the reasons explained above, the panel’s operative 

principle is constitutional fiction. It cannot be squared with 

the core truth that the government need not and cannot 

discriminate against its religious employees to fulfill its 

obligations under the Establishment Clause. We must stop 

allowing government entities to express their hostility 

toward religion by vaguely alluding to the endorsement 

boogeyman. And as another judge on this circuit aptly put 

it, “[t]he way to stop hostility to religion is to stop being 

hostile to religion.” Kennedy, 4 F.4th 910, 945 (9th Cir. 

2021) (R. Nelson, J., dissenting from the denial of rehearing 

en banc). In its own opinion in Kennedy, the Supreme Court 

agreed. I’m not sure how many more times the Court will 

have to repeat itself before this court gets the message, but 

apparently it still hasn’t sunk in. Until it does, we are 

doomed to repeat the kinds of errors our court unfortunately 

blesses today.

IV.

To complement its errors regarding the evidence of the 

City’s intent to discriminate and its treatment of the City’s 

supposed “legitimate” and “nondiscriminatory” reasons for 

firing Hittle, the panel made two more critical missteps. 

First, it misunderstood and misapplied Title VII’s 
66 HITTLE V. CITY OF STOCKTON

“motivating factor” standard for liability. And second, in its 

original opinion, it incorrectly heightened a Title VII 

plaintiff’s standard of proof. Each of these errors is 

independently sufficient to warrant rehearing, and taken 

together with the panel’s many other errors, they cried out 

for en banc correction.

A.

First consider the panel’s causation analysis. The City 

advanced—and the panel recounted—a number of other 

examples of Hittle’s misconduct that supposedly explained 

his firing. See Hittle, 76 F.4th at 881–82, 892–93. The panel 

thought it relevant that “the City articulated an 

overwhelming number of other non-discriminatory reasons 

for terminating Hittle’s employment.” Id. at 892 (cleaned 

up). But that too was error. When an illegal employment 

criterion at least partly motivates the decision to fire an

employee, it does not matter that the employer was 

motivated by other legitimate and nondiscriminatory criteria 

as well.

That is because Title VII includes two separate causation 

standards, each sufficient to establish an “unlawful 

employment practice” under Title VII. The first, premised 

on Title VII’s core provision making it illegal to 

“discriminate ... because of ... religion,” 42 U.S.C. 

§ 2000e-2(a)(1), incorporates “the traditional but-for 

causation standard.” Bostock, 590 U.S. at 656. But 

Congress also codified a separate and “more forgiving,” id.

at 657, standard at 42 U.S.C. § 2000e-2(m), which provides 

that “an unlawful employment practice is established when 

the complaining party demonstrates that ... religion ... was 

a motivating factor for any employment practice, even 
HITTLE V. CITY OF STOCKTON 67

though other factors also motivated the practice” (emphasis 

added).

As the Supreme Court explained in Bostock, “a but-for 

test directs us to change one thing at a time and see if the 

outcome changes.” 590 U.S. at 656. “Often, events have 

multiple but-for causes,” and “[w]hen it comes to Title VII, 

the adoption of the traditional but-for causation standard 

means a defendant cannot avoid liability just by citing some 

other factor that contributed to the challenged employment 

decision.” Id. Here, by privileging the City’s “other 

nondiscriminatory reasons” that supposedly justified Hittle’s 

firing, the panel flouted Bostock’s explanation of the but-for 

causation standard. We know that Hittle’s Summit 

attendance was one but-for cause of his firing for the very 

simple and unassailable reason that the City has told us so. 

It expressly referenced the Summit in at least two of the ten 

reasons it provided in its notice. And even more compelling 

than that, the investigator’s report very specifically noted 

that “[i]t is the concern of the City that the Global Leadership 

Summit was a religious based event.” Given these 

undisputed facts, the analysis should have been very simple: 

Because “plaintiff’s [religion] was [at least] one but-for 

cause of that decision, that is enough to trigger the law.” Id.

But even if Hittle could not meet the but-for causation 

standard, he is certainly able to show that the Summit was “a 

motivating factor” in his firing. The panel’s reliance on the 

City’s other motives is reminiscent of the Supreme Court’s 

now abrogated ruling in Price Waterhouse, where a plurality 

held that a “defendant may defeat liability by establishing 

that it would have made the same decision even if it had not 

taken the plaintiff’s race (or other protected trait) into 

account.” Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned 

Media, 589 U.S. 327, 337 (2020) (citing Price Waterhouse 
68 HITTLE V. CITY OF STOCKTON

v. Hopkins, 490 U.S. 228, 246 (1989)). But Price 

Waterhouse’s reasoning did not stand for long. After 

Congress “displaced Price Waterhouse in favor of its own 

version of the motivating factor test,” id., it now “suffices 

instead to show that the motive to discriminate was one of 

the employer’s motives, even if the employer also had other, 

lawful motives that were causative in the employer’s 

decision.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 

338, 343 (2013). So even if the City had other lawful 

motives to fire Hittle—which Hittle disputes—those 

motives do not displace its unlawful consideration of Hittle’s 

Summit attendance. The panel erred by suggesting 

otherwise.

B.

Finally, the panel’s original opinion seriously erred in its 

description of what kind of evidence is sufficient to state a 

Title VII claim by (1) requiring Hittle to show that his firing 

was “motivated by religious hostility” instead of a mere 

intent to discriminate and (2) demanding that a 

decisionmaker’s remarks “be ‘clearly sexist, racist, or 

similarly discriminatory’ to create an inference of 

discriminatory motive.” See Hittle, 76 F.4th at 890, 892.

As to the panel’s original suggestion that an employer 

must be motivated by hostility for a firing to constitute 

actionable discrimination, the Supreme Court plainly and 

forthrightly disagrees. In Watson v. Fort Worth Bank & 

Trust, for example, it explained that a Title VII plaintiff need 

only demonstrate “that the defendant had a discriminatory 

intent or motive.” 487 U.S. 977, 986 (1988) (emphasis 

added). And more recently, in Bostock, the Court formulated 

the rule as follows: “[A]n employer who intentionally treats 

a person worse because of [a protected characteristic] ... 
HITTLE V. CITY OF STOCKTON 69

discriminates against that person in violation of Title VII.” 

590 U.S. at 658. Until the panel’s decision here, our 

precedent was in alignment with the Supreme Court’s 

standard. See Costa, 299 F.3d at 854 (“Disparate treatment 

claims require the plaintiff to prove that the employer acted 

with conscious intent to discriminate.”) (emphasis added).

While ill will, bias, or hostility will certainly do the trick, 

see Cordova, 124 F.3d at 1149, one can act with an intent to 

discriminate without an inkling of ill will toward a protected 

class—and even with an “ostensibly benign” purpose in 

mind. Int’l Union, United Auto., Aerospace and Agr. 

Implement Workers of Am., UAW v. Johnson Controls, 499 

U.S. 187, 188, 198 (1991); see also City of Los Angeles, 

Dep’t of Water & Pow. v. Manhart, 435 U.S. 702, 707 

(1978) (disallowing policy premised on an “unquestionably 

true” “generalization” that “[w]omen, as a class, do live 

longer than men” even though the policy displayed no 

hostility toward women); Phillips v. Martin Marietta Corp., 

400 U.S. 542, 543 (1971) (rejecting policy even though “no 

question of bias against women ... was presented”). The 

panel’s decision, which conflated “discriminatory animus” 

with “hostility,” is a stark outlier by comparison.5

The panel also invoked this court’s decision in Coghlan 

v. American Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 

5 The panel’s confusion, though serious, is certainly understandable. 

After all, in everyday parlance, one who acts with “animus” is often 

understood to harbor hostility or ill will rather than a mere intention. 

Dictionary definitions bear this common understanding out. While 

Black’s Law Dictionary’s second definition of “animus” is “intention,” 

its first definition of the word is “ill will; animosity.” Our circuit’s use 

of the phrase “discriminatory animus,” while doctrinally consistent with 

the Supreme Court’s use of the same phrase, is confusing and invites the 

type of error originally made by the panel.
70 HITTLE V. CITY OF STOCKTON

2005), for the proposition that “discriminatory remarks 

made by a decisionmaker must be ‘clearly sexist, racist, or 

similarly discriminatory’ to create an inference of 

discriminatory motive.” Hittle, 76 F.4th at 891 (emphasis 

added). That again misreads our precedent, as Coghlan says 

no such thing. Rather, it says only that “[d]irect evidence 

typically consists of clearly sexist, racist, or similarly 

discriminatory statements or actions by the employer.” 

Coghlan, 413 F.3d at 1095 (emphasis added). That’s a big 

difference.

Now, the panel responds to these significant errors by 

attempting to paper over them in its amended opinion, all 

while reaching the same incorrect result it reached before. 

Its amendments scrub any reference to the term “hostility” 

from the opinion and substitute in the term “discriminatory 

animus.” Tellingly, it also recharacterizes the investigator’s 

focus on religion, which it previously referred to as the 

“gravamen” of the report, as now nothing more than an 

“aspect” of that document. It’s worth making a few 

observations about the panel’s supposed fixes.

First, even if replacing the word “hostility” with the 

phrase “discriminatory animus” might fix the opinion’s 

description of the intentional discrimination standard from a 

doctrinal perspective, that does nothing practical to clarify 

the state of our law, flag the reasons for the panel’s mistake, 

or prevent a future panel from repeating the same error. As 

explained above, the term “discriminatory animus” is 

confusing and has the potential to invite error. And since the 

panel now uses the phrase “discriminatory animus” to 

replace its former use of the word “hostility,” without 

explaining that it does not actually mean “hostility,” this 

revised decision will only add to the risk that future panels 

make the same mistake.
HITTLE V. CITY OF STOCKTON 71

Second, the amendments do not fix the panel’s other 

incorrect statement that discriminatory remarks “must be 

‘clearly sexist, racist, or similarly discriminatory’ to create 

an inference of discriminatory motive.” As previously 

explained, that overreads Coghlan, and it is simply not the 

standard in this circuit. Given that the panel’s amendments 

leave this and many other errors uncorrected, the court 

should have taken this case en banc, where it would have 

been able to provide more helpful guidance about what 

“discriminatory animus” means. It should not have left such 

an important issue to be addressed by a few ambiguous 

changes in verbiage issued quietly in an amended opinion.

Third, the panel makes an unexplained and indefensible 

change to its position regarding the centrality of religion to 

the investigator’s report. In the original opinion, the panel 

acknowledged that religion is the “gravamen” of the 

report—because it obviously is. But it claimed that didn’t 

matter to the outcome of the case because Montes and Deis 

had not displayed any hostility to Hittle’s religion. Now, in 

the amended opinion, where the panel has no “hostility” 

standard to fall back on, religion is suddenly relegated to 

merely an “aspect” of the report—and moreover, an aspect 

that apparently played no role in his firing.

The panel sneaks this change into its opinion alongside 

its other clarifying amendments, but this move is obviously 

much more than a mere clarification. It’s an about-face on a 

key issue of fact, and in the absence of the more demanding 

“hostility” standard of disparate treatment liability, it is an 

about-face that is critically necessary to maintain the current 

disposition in favor of the City. After all, if (1) religion was 

the gravamen of the report, (2) the decision to fire Hittle was 

based on the report, and (3) all that Hittle is required to show 

was that he was “intentionally treat[ed] ... worse because of” 
72 HITTLE V. CITY OF STOCKTON

religion, Bostock, 590 U.S. at 658, then the religious 

“gravamen” of the report is a dispositive factual finding in 

favor of Hittle. The panel provides no justification for its 

convenient epiphany regarding the proper reading of the 

report, and one could be forgiven for concluding the move is 

results oriented.

The strategic nature of the panel’s amendments 

magnifies the need for en banc review. If the court is going 

to make adjustments of this significance to the nuts and bolts 

of a high-profile opinion, it should have done so directly. It 

should have squarely repudiated the panel’s prior flawed 

reasoning in an en banc opinion instead of allowing the panel 

to mask its most obvious mistakes behind a few unassuming 

changes of verbiage. For this and the many other reasons 

described above, we should have taken this case en banc.

V.

This is not the first time this court has refused to rehear 

a case in which a government employer has sacrificed its 

employees’ religious rights in an ill-advised effort to satisfy 

the supposed requirements of the thoroughly repudiated 

endorsement test. See Kennedy, 4 F.4th at 911. And given 

our court’s refusal to address this mistake en banc, it likely 

will not be the last. In this latest effort, Title VII has now 

become collateral damage in our crusade against “acting 

Christian” in public workplaces. I shudder to think about 

what area of caselaw we might distort next. Even though the 

“ghoul” of the endorsement test has now been “repeatedly 

killed and buried,” Lamb’s Chapel, 508 U.S. at 398 (Scalia, 

J., concurring in the judgment), one could be forgiven for 

concluding that the reports of its death are greatly 

exaggerated—at least out here on the Left Coast.