Scott TEUTSCHER, an individual, Plaintiff-counter-defendant-Appellant, v. RIVERSIDE SHERIFFS ASSOCIATION; Riverside Sheriffs Association Legal Defense Trust; James L. Cunningham, individually and as an Agent of the Riverside Sheriffs Association/Riverside Sheriffs Association Legal Defense Trust, Defendants-counter-claimants-Appellees, and Tanya Conrad, individually and as an Agent of the Riverside Sheriffs Association, Defendant-Appellee, 492 F. App'x 719

ORDER Appellee Riverside Sheriffs’ Association Legal Defense Trust’s Petition for Rehearing filed on June 29, 2012 is granted, without further oral argument. The memorandum disposition filed on June 25, 2012 is replaced. We file an amended memorandum disposition concurrently with this order. No further petitions shall be entertained. AMENDED MEMORANDUM Plaintiff-Appellant Scott Teutscher (Teutscher) appeals from the district court’s order granting

summary judgment to the defendants. Because the parties are familiar with the factual and procedural history of this case, we repeat only those facts necessary to resolve the issues raised on appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse in part. We reverse the district court’s grant of

summary judgment on Teutscher’s retaliation claim under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. To survive

summary judgment at the pretext stage, a plaintiff “must produce sufficient evidence to raise a genuine issue of material fact as to whether the employer’s proffered nondiscriminatory reason is merely a pretext for discrimination.” Dominguez-Curry v. Nev. Tramp. Dep’t, 424 F.3d 1027, 1037 (9th Cir.2005). “The plaintiff can prove pretext (1) indirectly, by showing that the employer’s proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.” Raad v. Fairbanks N.

Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir.2003) (internal quotation marks and citation omitted). “All of the evidence— whether direct or indirect — is to be considered cumulatively.” Id. The amount of evidence required to avoid

summary judgment is “minimal.” Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1127 (9th Cir.2009). “We have held that very little evidence is necessary to raise a genuine issue of fact regarding an employer’s motive; any indication of discriminatory motive may suffice to raise a question that can only be resolved by a fact-finder.” Id. (citation omitted). Here, Teutscher offers sufficient admissible evidence to raise a genuine issue of material fact as to pretext.

In particular, Teutscher’s evidence that he was told by Pat McNamara (McNamara) and James Cunningham (Cunningham) that Tanya Conrad (Conrad) recanted her accusations about Teutscher’s alleged misconduct is substantial evidence that Conrad’s accusations were not the true reason for Teutscher’s termination. Although this evidence contains hearsay within hearsay, it is admissible under Federal Rules of Evidence 801(d)(2)(

D) and 805. See Fed.R.Evid. 801(d)(2)(D); Fed.R.Evid. 805; Palmer v. Pioneer Inn Assocs., Ltd., 338 F.3d 981, 984-85 (9th Cir.2003); Lambert v. Ackerley, 180 F.3d 997, 1008 & n. 12 (9th Cir.1999) (en banc). . Other evidence also suggests pretext, such as Cunningham’s statement to Teutscher that “[w]e question your loyalty to Pat [McNamara] in the Winchell case” and the timing of Teutscher’s termination. Because Teutscher raises a genuine issue of material fact as to pretext, we conclude that the district court erred in granting the defendants

summary judgment on Teutscher’s ERISA retaliation claim. For the same reason, we reverse the district court’s grant of

summary judgment on Teutscher’s California state law claims other than for defamation. The district court did not err in granting

summary judgment to the defendants on Teutscher’s defamation claim because Teutscher did not produce sufficient evidence to raise a genuine issue of fact as to malice. See Cal. Civ.Code § 47(c); Noel v. River Hills Wilsons, Inc., 113 Cal.App.4th 1363, 7 Cal.Rptr.3d 216, 221-22 (2003). The district court did not err in granting

summary judgment to Riverside Sheriffs’ Association Legal Defense Trust (LDT) because Teutscher presented no evidence that LDT had any role in the decision to fire him or had significant control over his daily activities. In light of our conclusions, we need not reach the remaining issues raised by the parties. For the foregoing reasons, we affirm in part and reverse in part. We deny Teutscher’s request that the case on remand be assigned to a different district judge. See United States v. Lyons, 472 F.3d 1055, 1071 (9th Cir.2007).

The case is hereby remanded to the district court for trial against Riverside Sheriffs’ Association and Cunningham on Teutscher’s ERISA retaliation claim and California state law claims other than for defamation. Each party shall bear its own costs. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.