Here is the opinion in Torgersen v. City of Rochester.

The court’s summary:

Employment Discrimination. Summary judgment is not disfavored and is designed for “every action,” and panel decisions to the contrary are unauthorized and should not be followed; there is no “employment discrimination case exception” to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial; neither of the statements plaintiffs point to in the record were direct evidence of gender or national-origin based discrimination in violation of Title VII; plaintiffs made a prima facie case of discrimination, but the City advanced nondiscriminatory grounds for its hiring decisions, and plaintiffs failed to show the grounds were pretexts for discrimination; fact that plaintiffs and the hired candidates had “relatively similar qualifications” does not create a material issue of fact as to pretext; plaintiff Torgerson alleged he was discriminated against on the basis of national origin, not race, and his Section 1981 claim fails. Judge Colloton, concurring. Smith, with whom Murphy, Bye Melloy and Shepherd join, concurring in part and dissenting in part.

Of note, the majority held that American Indians do not have discrimination claims based on national origin, but only on the basis of race:

Torgerson contends that his claim is based on Native American status, which may be treated as both a race claim and a national-origin claim. See Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117, 1119 n.4 (9th Cir. 1998) (a claim of discrimination based on Native-American status may be a claim based on race). But a race claim based on Native-American status must be stated as a race claim, which Torgerson failed to do. Torgerson’s complaint states, “Defendant has discriminated [ ] against Plaintiff in the formation of an employment contract on the basis of his national origin, in violation of 42 U.S.C. §1981.” (Emphasis added). At no time did he move to amend his complaint to include race discrimination. Torgerson testified in a deposition that he believes he was discriminated against because of his national origin, and until the City’s motion for summary judgment, never referred to race in any court documents. Because Torgerson alleges he was discriminated against based on national origin, not race, his § 1981 claim fails.