FILED
NOV 29 2010
MOLLY C. DWYER, CLERK
NOT FOR PUBLICATION U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEAN CLAIR MARKELL, No. 09-36007
Plaintiff - Appellant, D.C. No. 3:08-cv-00752-MFM
v.
MEMORANDUM*
KAISER FOUNDATION HEALTH
PLAN OF THE NORTHWEST
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Argued and submitted November 5, 2010
Portland, Oregon
Before: W. FLETCHER and FISHER, Circuit Judges, and JONES, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
1
The district court granted summary judgment in favor of Kaiser Foundation
Health Plan of the Northwest (“Kaiser”) on appellant Jean Clair Markell’s claim that
Kaiser violated the Age Discrimination in Employment Act of 1967. We affirm.
Under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973),
burden-shifting framework, a plaintiff must present a prima facie case of
discrimination and a triable issue of material fact as to pretext if the employer offers
a nondiscriminatory explanation for termination.
Markell argues that her statements and two supporting affidavits of former
Kaiser employees provide such evidence. Even assuming that the affidavits were
admissible, they do not overcome Kaiser’s nondiscriminatory explanation for
Markell’s termination or provide evidence that Markell was performing her job to
Kaiser’s satisfaction. Markell concedes that she copied confidential patient records,
both of her own patients and of patients not under her care, and that she took these
records home with her. These actions violated Kaiser’s internal policies and
potentially subjected Kaiser to liability under federal law.
In order to overcome such a nondiscriminatory reason for termination, Markell
needed to provide “specific and substantial” evidence to show that Kaiser’s reason
was pretextual. Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 659 (9th
Cir. 2002). She did not meet this burden.
2
Significant factual disparities exist between the facts surrounding Markell’s
termination and the facts asserted by the two former employees in the affidavits.
Especially in view of Markell’s prior disciplinary record, the affidavits do not present
circumstances similar enough to allow the district court to find a triable issue of fact
as to whether Markell was performing her job satisfactorily or to show pretext.
Prior to suit, a labor arbitrator found that Kaiser had good cause to fire Markell.
However, because it is not necessary to answer Kaiser’s collateral estoppel argument
to decide this case, we decline to do so.
AFFIRMED.
3