The Ohio House, LLC v. City of Costa Mesa, 135 F.4th 645 (2024)

Citation: The Ohio House, LLC v. City of Costa Mesa, 135 F.4th 645 (2024)
Parent Document: The Ohio House, LLC v. City of Costa Mesa, 135 F.4th 645 (2024)
Jurisdiction: United States (federal)
Effective Date: 2024-12-04
Original Source: https://www.courtlistener.com/opinion/10287865/the-ohio-house-llc-v-city-of-c... ↗

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“challenging as pretextual a facially neutral explanation for
the challenged action.” Morris, 104 F.4th at 1140; see also
Pac. Shores Props., 730 F.3d at 1158.
    Second, a plaintiff may prove disparate treatment with
“‘direct or circumstantial evidence demonstrating that a
discriminatory reason more likely than not motivated’ the
defendant and that the defendant’s actions adversely affected
the plaintiff in some way.” Pac. Shores Props., 730 F.3d at
1158 (quoting McGinest v. GTE Serv. Corp., 360 F.3d 1103,
1122 (9th Cir. 2004)). The discriminatory purpose need not
be the defendant’s “sole purpose” for taking the challenged
action, but it must have been “a ‘motivating factor.’” Morris,
104 F.4th at 1140 (emphasis removed) (quoting Ave. 6E
Invs., LLC v. City of Yuma, 818 F.3d 493, 504 (9th Cir.
2016)). Under this standard, we employ “the ‘sensitive’
multi-factor inquiry articulated by the Supreme Court in
Arlington Heights v. Metropolitan Housing Corp., 429 U.S.
252, 266 (1977), to determine whether the plaintiff[] ha[s]
created a triable issue of fact that the defendant’s actions
were motivated by discriminatory intent.” Pac. Shores
Props., 730 F.3d at 1158.
    Finally, relevant here, we have held that a plaintiff may
prove disparate treatment through “[a] facially
discriminatory policy [that] on its face applies less favorably
to a protected group.” Community House, Inc. v. City of
Boise, 490 F.3d 1041, 1048 (9th Cir. 2007). In this context,
we have held that International Union, United Automobile,
Aerospace & Agricultural Implement Workers of America v.
Johnson Controls, Inc., 499 U.S. 187 (1991), governs.
Community House, Inc., 490 F.3d at 1049. Under Johnson
Controls, a disparate-treatment claim based on a facially
discriminatory policy “does not depend on why the
[defendant] discriminates but rather on the explicit terms of
          THE OHIO HOUSE, LLC V. CITY OF COSTA MESA           19

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