Susie Abram v. City & County of San Francisco , 357 F. App'x 142 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 10 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SUSIE ABRAM, No. 08-17434
Plaintiff - Appellant, D.C. No. 3:07-cv-03006-PJH
v.
MEMORANDUM *
CITY & COUNTY OF SAN
FRANCISCO DEPARTMENT OF
PUBLIC HEALTH; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted December 2, 2009
San Francisco, California
Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.
Susie Abram appeals the district court’s adverse summary judgment grant
for her action under 42 U.S.C. § 1981 against the City and County of San
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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Francisco (“City”), Department of Public Health, and William Frazier, Director of
Therapeautic Activities, Laguna Honda Hospital. We affirm. Because the parties
are familiar with the factual and procedural history of this case, we need not
recount it here.
I
We review a district court’s grant of summary judgment de novo. Strahan v.
Kirkland, 287 F.3d 821, 825 (9th Cir. 2002). The court “must determine, viewing
the evidence in the light most favorable to the nonmoving party, whether the
district court correctly applied the relevant substantive law and whether there are
any genuine issues of material fact.” Balint v. Carson City, 180 F.3d 1047, 1050
(9th Cir. 1999) (en banc).
Abram has not established a material issue of fact as to her claims of
discrimination and retaliation. She has not alleged any statements or actions
“prov[ing] the fact of [discriminatory or retaliatory] animus without inference or
presumption.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005)
(internal quotations marks, alteration, and citation omitted); see also Ray v.
Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).
She has not raised indirect evidence “showing that the employer’s proffered
explanation is ‘unworthy of credence’ because it is internally inconsistent or
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otherwise not believable.” Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d
840, 849 (9th Cir. 2004) (internal quotation marks and citation omitted).
Abram claims that disciplinary actions taken against her by her supervisor
were unwarranted, and were instituted against her as a result of her race and in
retaliation for her complaints of discriminatory treatment. However, Defendants
demonstrated legitimate, nondiscriminatory reasons for the disciplinary measures –
problems with Abram’s work performance.
Abram has not shown that Defendants’ proffered justification for the
disciplinary measures is “unworthy of credence.” She does not dispute the factual
circumstances underlying the discipline and fails to point to specific instances in
which other individuals who committed similar offenses were subject to less
punishment.
Abram contends in her brief and at oral argument that she has been a good
employee with an excellent work record over a long tenure. She contends that her
recent treatment by her supervisors was unjustified. Accepting that as true, for the
sake of argument, it still does not–without more–create a genuine issue of fact as to
a claim of racial discrimination under federal law.
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II
Abram also alleges that Defendants conduct created a hostile workplace
environment. In order to prevail on a hostile workplace environment claim
premised on race, Abram must show: (1) that she was subjected to verbal or
physical conduct of a racial nature; (2) that the conduct was unwelcome; and (3)
that the conduct was sufficiently severe or pervasive to alter the conditions of
plaintiff’s employment and create an abusive work environment. See Vasquez v.
City of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2004). Abram cannot make a
prima facie showing of hostile workplace harassment because she does not allege
any particularized facts indicating she has suffered any verbal or physical conduct
of a racial nature. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108-1109
(9th Cir. 2008) (plaintiff failed to state a hostile workplace harassment claim where
the comments she complained of were performance-related, not based on race).
III
Because we affirm the district court’s grant of summary judgment as to
Abram’s claims of race discrimination, retaliation and hostile workplace
harassment, we need not reach the issue of the City’s liability under Monell v.
Dep’t of Soc. Servs. of New York, 436 U.S. 658 (1978) because the City is not
vicariously liable if there is no underlying liability.
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AFFIRMED.
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