Sonia Bach v. Community Ties of America ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 12 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SONIA B. BACH, No. 19-17500
Plaintiff-Appellant, D.C. No.
1:18-cv-00103-LEK-WRP
v.
COMMUNITY TIES OF AMERICA, MEMORANDUM*
INC.,
Defendant-Appellee,
and
DOES, John and Jane 1-5; DOE
CORPORATIONS, 1-5; DOE
PARTNERSHIPS, 1-5; DOE NON-
PROFIT ORGANIZATIONS, 1-5; DOE
GOVERNMENT AGENCIES, 1-5,
Defendants.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted February 2, 2021
Honolulu, Hawaii
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: CLIFTON, R. NELSON, and COLLINS, Circuit Judges.
Plaintiff-Appellant Sonia Bach (“Bach”) filed suit against her former
employer, Defendant-Appellee Community Ties of America (“Community Ties”),
alleging that her termination was motivated by disability discrimination and
retaliation in violation of Haw. Rev. Stat. § 378-2(a)(1)–(2) and the Hawaii
Whistleblowers’ Protection Act (“HWPA”), Haw. Rev. Stat. § 378-62. The District
Court granted summary judgment in favor of Community Ties with regard to all
the relevant claims. We have jurisdiction to review under 28 U.S.C. § 1291, and
we affirm.
Orders granting summary judgment are reviewed de novo. Diaz v. Eagle
Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008). At the summary
judgment stage, we apply the familiar McDonnell Douglas burden-shifting
framework to the discrimination and retaliation claims at issue here. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see also French v. Haw.
Pizza Hut, Inc., 99 P.3d 1046, 1054–55 (Haw. 2004) (applying the burden shifting
framework to § 378-2 claims); Crosby v. State Dep’t of Budget & Fin., 876 P.2d
1300, 1310 (Haw. 1994) (applying the burden shifting framework to HWPA
claims).
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Even assuming that the record contained sufficient facts to support a prima
facie showing of discrimination and retaliation for all three claims on the first step
of the McDonnell Douglas analysis, Bach failed to show that the overwhelming
evidence of non-discriminatory and non-retaliatory reasons for her termination
were pretextual, at the final step of the McDonnell Douglas analysis.
Community Ties provided evidence that it terminated Bach for legitimate
and nondiscriminatory reasons after it concluded there were significant
deficiencies in Bach’s performance and behavior. For example, when Bach’s
supervisor made quality assurance calls to Bach’s clients, thirteen out of thirty-
three reported issues with Bach’s performance or behavior. Four requested that
Bach be reassigned. The client complaints detailed a pattern of behavior that
Community Ties determined was unacceptable when compared against the
expectations listed in the job description, employee manual, and the company’s
anti-bullying policy.
To rebut this evidence, Bach provides only two forms of circumstantial
evidence to support a showing of pretext. First, Bach argues that the proximate
timing of the key chain of events—from her medical leave to probation to
termination—raises an inference of impermissible motive, especially because she
was terminated less than a week after submitting an accommodation request for her
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medical condition. Second, Bach argues that Community Ties offered competing
and contradictory explanations for why it would need to fire her. During her
medical leave, her supervisor stated that Bach would have to be terminated because
the company would need to hire a replacement to fill in for her during her extended
medical leave. Eventually, however, the company cited performance-related
reasons for terminating Bach.
The timing of key events and shifting explanations for employment
decisions may, in some instances, give rise to an inference of pretext. See, e.g.,
Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 694 (9th Cir. 2017) (temporal
proximity); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996)
(shifting explanations). In this case, though, Bach failed to present evidence raising
a genuine issue of material fact as to whether she was terminated for legitimate,
non-discriminatory reasons.
When Bach went on medical leave, her supervisor had to cover Bach’s
workload, and in so doing, discovered deficiencies warranting a performance
improvement plan. Despite the plan, however, Community Ties continued to
receive unsolicited complaints about Bach during the probationary period, right up
until Bach’s termination. By the time Bach submitted her accommodation request,
Bach’s final paycheck had already been requested. On this record, no reasonable
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fact finder could conclude that the proferred reasons for firing Bach were
pretextual.
For all of these reasons, we hold that Bach failed to carry her burden on the
final phase of the summary judgment analysis, and affirm.
AFFIRMED.
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