Crowe v. Averill

── Crowe v. Averill ── Court: Court of Appeals for the Ninth Circuit Date: May 12, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 12 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT STEVEN W. CROWE, No. 25-1400 D.C. No. Plaintiff - Appellant, 1:18-cv-00288-RT v. MEMORANDUM* MARK F. AVERILL, Acting Secretary of the Army, Defendant - Appellee, and JOHN E. WHITLEY, CHRISTINE WORMUTH, MARK T. ESPER, RYAN D. MCCARTHY, Defendants. Appeal from the United States District Court for the District of Hawaii Rom Alex Trader, Magistrate Judge, Presiding Argued and Submitted February 11, 2026 Honolulu, Hawaii Before: BYBEE, R. NELSON, and FORREST, Circuit Judges. Concurrence by Judge R. NELSON. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Plaintiff-Appellant Steven Crowe appeals the district court’s grant of summary judgment to his employer, the Department of the Army, on his pretermination claims of disparate treatment, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2(a), 2000e–3(a). The facts and proceedings are known to the parties and will be repeated only to explain our decision.1 We reverse and remand. We review a district court’s grant of summary judgment de novo. Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1033 (9th Cir. 2005). In doing so, we view the evidence, and draw all reasonable inferences, in the light most favorable to the non-moving party and determine whether there are any genuine issues of material fact. Id. To survive a motion for summary judgment on a Title VII claim, a plaintiff’s requisite degree of proof “is minimal and does not even need to rise to the level of a preponderance of the evidence.’’ Kama v. Mayorkas, 107 F.4th 1054, 1059 (9th Cir. 2024) (internal quotation marks and citation omitted). The Title VII discrimination and retaliation claims are governed by the McDonnell Douglas burden-shifting framework. Yartzoff v. Thomas, 809 F.2d 1371, 1374–75 1 In a published opinion, a previous panel of our court found that Crowe had not failed to exhaust administrative remedies on these pretermination claims and remanded to the district court to assess the merits. Crowe v. Wormuth, 74 F.4th 1011, 1022 (9th Cir. 2023). The panel also affirmed summary judgment to the Army on Crowe’s termination claims, which are separate from the pretermination claims back before us. Id. at 1035. 2 25-1400 (9th Cir. 1987). Under this framework, if Crowe establishes a prima facie case, the burden shifts to the Army to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. at 1374. If the Army does so, the burden then shifts back to Crowe to show that the proffered reason is pretextual. Id. at 1377. 1. Crowe first challenges the district court’s grant of summary judgment to the Army on his Title VII discrimination claim. 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of discrimination, Crowe must show 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 inferen