Metropolitan News-Enterprise


Monday, July 19, 2021


Page 1


Ninth Circuit:

Chemist Stated Plausible Claim Against Navy Based on Discrimination As Non-Mormon


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday reinstated a dismissed action by a chemist who works for the Navy and contends he faced workplace discrimination based on refusal to become a Mormon.

A three-judge panel, in a memorandum opinion, reversed the dismissal with prejudice of William Albro’s discriminatory treatment claim against Richard V. Spencer, secretary of the United States Department of the Navy. The claim is based on conduct of his supervisor and others at the Naval Air Warfare Center Weapons Division facility in China Lake, located in Kern County.

However, the panel—comprised of Circuit Judges Daniel Aaron Bress and Patrick J. Bumatay, along with District Court Judge Douglas L. Rayes of the District of Arizona, sitting by designation—affirmed the dismissal with prejudice of Albro’s claim of retaliation.

Requisites for Claim

The panel recited that under the Ninth Circuit’s 2004 decision in Peterson v. Hewlett-Packard Co., a plaintiff alleging discrimination in violation of Title VII of the Civil Rights Act of 1964 must allege sufficient facts to render it plausible 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.”

District Court Judge Dale A. Drozd of Eastern District of California, in dismissing Albro’s discrimination claim, found that “other circumstances surrounding the adverse employment action” were not alleged. Although Albro had incurred adverse actions—including being suspended for seven days and reassigned—Drozd said no link was shown between those actions and unsuccessful efforts by co-worker Ephraim Washburn to recruit Albro as a member of the Church of Jesus Christ of Latter-Day Saints (“LDS”), in which Washburn was a high priest.

Drozd said in his order:

“Washburn was not involved in the three adverse employment actions that plaintiff suffered in late 2015 and early 2016, and Washburn’s direct recruitment efforts of plaintiff allegedly began near a decade before those actions were taken and appeared to have stopped in 2010 when plaintiff’s wife disassociated from the LDS Church, if not sooner.”

Albro’s Allegations

Disagreeing, the panel recited Albro’s allegations that Washburn “continually attempted to recruit him to the LDS Church after Albro started working at the Navy’s China Lake research facility” in 2006, that he did recruit Albro’s wife although she later dropped out, and that once Washburn became Albro’s supervisor, he brought about the suspension and reassignment.

“Given the substantial history of Albro’s adverse interactions with Washburn concerning the LDS Church and Washburn’s later supervisory role over Albro, Albro has plausibly alleged he suffered discriminatory treatment,” the panel said.

The retaliation claim was based on adverse employment actions which Albro alleged stemmed from his complaining of Washburn’s conduct to a manager, a human resources representative, and the Equal Employment Opportunity Office. While lodging complaints was “protected activity,” the panel said, “Albro never alleges that the managers who suspended and reassigned him even knew of his protected activity,” justifying the dismissal of the claim.

The case is Albro v. Spencer, 20-15981.


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