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Head v. Wilkie

United States Court of Appeals, Ninth Circuit

September 5, 2019

Christian Head, M.D., Plaintiff-Appellant,
v.
Robert Wilkie, Secretary of Department of Veterans Affairs; Dean Norman, M.D.; Donna M. Beiter, R. N. M.S.N., Defendants-Appellees.

          Argued and Submitted April 9, 2019

          Appeal from the United States District Court for the Central District of California No. 2:14-cv-01563-SVW-PLA Stephen V. Wilson, District Judge, Presiding

          Zane E. Hilton (argued), Lawrance A. Bohm, and Bradley J. Mancuso, Bohm Law Group Inc., Sacramento, California, for Plaintiff-Appellant.

          Chung H. Han (argued), Special Assistant United States Attorney; David M. Harris, Chief, Civil Division; Nicola T. Hanna, United States Attorney; United States Attorney's Office, Los Angeles, California; for Defendants-Appellees.

          Before: A. Wallace Tashima and Richard A. Paez, Circuit Judges, and Gary S. Katzmann, [*] Judge.

         SUMMARY [**]

         Civil Rights

         The panel reversed the district court's order granting summary judgment to defendants in an action brought by Christian Head, M.D., an African-American, board-certified head and neck surgeon who filed a lawsuit against his employer, the Secretary of the Department of Veterans Affairs and individual employees alleging, in part, that his supervisors violated 42 U.S.C. § 1985(2) by conspiring to deter him from testifying in a colleague's and his own civil rights cases.

         The district court granted the defendants' motion for summary judgment on the § 1985(2) conspiracy claim, relying on David v. United States, 820 F.2d 1038 (9th Cir. 1987), which held that only parties to the initial case who were "hampered in being able to present an effective case" can show injury sufficient to bring a section 1985(2) claim.

         The panel held that this court's decision in David was abrogated by Haddle v. Garrison, 525 U.S. 121, 126 (1998), to the extent that David limited section 1985(2) claims on statutory standing and injury grounds in conflict with Haddle. The panel held that a plaintiff asserting conspiracy under section 1985(2) need not show that the party in the original proceeding was hampered in presenting an effective case; interference with a witness's employment is a cognizable injury for section 1985(2) purposes. The panel held that David's limitations were irreconcilable with Haddle's proclamation that intimidation or retaliation against witnesses in federal court proceedings constitute the "gist of the wrong" at which the statute is directed. The panel held that, as other sister circuits have recognized, this expanded view of section 1985(2) aligned with the Supreme Court's broad reading of the Reconstruction civil rights acts like section 1985.

         The panel held that plaintiff's allegations that employees retaliated against him based on his testimony in a colleague's federal civil rights case and in his own case alleged a cognizable injury. The panel reversed the district court's order granting summary judgment to the defendant supervisors on plaintiff's section 1985(2) conspiracy claim and remanded for further proceedings consistent with the panel's opinion and with the concurrently filed unpublished memorandum, which addressed plaintiff's remaining employment discrimination claims.

          OPINION

          PAEZ, CIRCUIT JUDGE

         Christian Head, M.D., is an African-American, board-certified head and neck surgeon who held dual appointments for over a decade at the Department of Veterans Affairs ("VA") and University of California, Los Angeles ("UCLA"). In 2014, Head filed an employment discrimination lawsuit against the Secretary of the VA, alleging racial discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Head also sued his VA supervisors, Dr. Dean Norman and Donna Beiter, alleging that they violated 42 U.S.C. § 1985(2) by conspiring to deter him from testifying in a colleague's and his own civil rights cases. Relying on David v. United States, 820 F.2d 1038 (9th Cir. 1987), the district court granted the defendants' motion for summary judgment on the conspiracy claim based on David's holding that only parties to the initial case who were "hampered in being able to present an effective case" can show injury sufficient to bring a section 1985(2) claim, id. at 1040.[1]

         On appeal, Head argues that the district court erred by ignoring more recent case law addressing what type of injury suffices to bring a section 1985(2) claim. We have jurisdiction under 28 U.S.C. § 1291, and we agree that the district court erred in granting summary judgment on this claim. Intervening higher authority from the Supreme Court has abrogated our holding in David. See Haddle v. Garrison, 525 U.S. 121, 126 (1998). Thus, we, as well as the district court, are not bound by David because it is "clearly irreconcilable with the reasoning or theory of intervening higher authority." Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). We therefore reverse and remand for further proceedings consistent with this opinion.

         I.

         Between 2002 and 2013, Head held dual appointments at the UCLA David Geffen School of Medicine as an Associate Professor in Residence of Head and Neck Surgery, as well as at the VA Greater Los Angeles Healthcare system ("GLAHS") as an attending surgeon. Head alleges that over his time at both institutions, he endured discrimination, retaliation, and harassment on the basis of his race and his participation in various internal investigations and Equal Employment Opportunity ("EEO") cases. He filed a total of three EEO complaints against the VA.[2]

         Head filed his first EEO complaint in 2004 against his then-supervisor, Dr. Marilene Wang, alleging reprisal and harassment on the basis of race. He filed his second EEO complaint in 2008 against a later supervisor, Dr. Matthias Stelzner, alleging reprisal, harassment, and hostile work environment. A 2008 internal investigation concluded that Head was treated differently from others similarly situated in his department, but could not determine the motivations behind that disparity. In 2009, as a result of the internal investigation, Head was reassigned to work in the Office of the Chief of ...


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