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Ronald Hittle was an at-will employee of the City of Stockton and served as the City’s Fire Chief from 2005 through 2011. Hittle sued the City, former City Manager Robert Deis, and former Deputy City Manager Laurie Montes 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 and California’s Fair Employment and Housing Act. Hittle alleged that Deis and Montes terminated his employment as Fire Chief “based upon his religion” and, specifically, his attendance at a religious leadership event.

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 Hittle’s motion and granted Defendants’ motion as to all of Hittle’s claims. The 9th Circuit Court of Appeals affirmed in the published case of Hittle v City of Stockton 76 F. 4th 877 (August 2023).

Hittle filed a petition for panel rehearing and rehearing en banc.The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. On May 17, 2024 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.

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 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.

Judge Lawrence James Christopher VanDyke concluded the dissent with Part IV(B) and V, without support of his colleagues.

In part IV(B) he wrote in part: “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.”

He goes on to say in IV(B) “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’ 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. “

In part V he wrote: “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.”